I.n.a Defence

I. N. A.
DEFENCE

' ‘MTjkitmhmp^ ft '»oc>i<-3eL!»-tf'«i».
. .. '. tmuT j !* lac *» * '

BY

BHULABHAI J. DESAl

' Fublished by
i n: A. DEFENCE
COMMITTEE,

B2^ Daryaganjy Delhi.

Printed

at

Delhi Printing Works,
Delhi.

CONTENTS

Fji:0E

L Intbobuctioh ... ... i

2. Oebeb Constituting Couet Maetul xiii

3. Defence Counsel, ... ... xiv

4. Chabge Sheet ... ... xv

#

5. Defence Addeess ... ... 1

6. Pboclamation of Azad Hind

Government ... ... 173

Government ... ... 173

Erratum:

■ Page 25, line 1,

Read ‘‘Pitt-Cobett’’ instead of **Dick Corbett/’

Introduction

I have been asked by the L N. A* Defence-
€ommlttee to write an introdnctory note to this reprint
of tl'ie address delivered by Bri Bhulabhai Desai, Senior
Defence Connsel > on behalf of the accused before the
Ocnrt Martial. I was with several other colleagnea
closely associated with Sri Desai during his defence
of the case, and I may be considered somewhat partial
to his great effort, but nevertheless I make bold to
say that it will rank as a great forensic performance.
It was deffnitely, I believe, the first argument deli-
vered before a tribunal which endeavoured to justify
in point of law, both International and Municipal, the
right of the Indian people to wage a war for the libera-
tion of their country from foreign bondage. The
argument would have indeed a wider application ; it
would cover all people at present subject, like India,
to foreign rule and desirous of regaining their lost
liberties. The case of Indonesia is directly in point.
>Ti Desai delivered an oral argument. He spoke* on'
two aays, altogether for over ten hours, and had almost
uo notes. The argument w^^as well worthy of con-
sideration in the highest law-courts of the land. There^
counsel would have been assisted in the development
of bis points by observations made from the Bench.
In the superior courts of justice, a legal argument of
this magnitude and high importance would occasion the
.keenest lively debate betw^een the Bench and the Bar,
both engaged in the search and elucidation of first
principles of International Law relevafit to the contro-
versy before them. But speaking before a Court Martial
consisting of military officers, Bri Desai had no such
advantage. There w^ere. no interruptions of any kind*
from, the first to the la^st, and the whole argument w^as
a sustained effort to present a point of view^

Counsel thought was well-founded in law and fully
applicable to the facts of the case. Speaking purely as
a lawyer and in the interest of development of law and
jurisprudence, I regret the absence of a formal judicial
pronouncement on the merits of the case as presented
by Sri Desai. His thesis was controverted by the
Advocate-General of India (Sir N. P. Engineer) who
appeared for the Prosecution, but the matter must rest
without a judicial decision, at least for the present,

Sri Desai quoted extensively from authoritative
text books,— British, American and Continental, on
International Law. It was noteworthy that all these
books having been written by European jurists dealt
at length with the States to be found in Europe and
America. There was scarcely any mention of the
countries or the peoples — or the inherent rights of these
peoples --in Asia and Africa, then under the domination
or protection or influence of European States. But it is
beyond question that International Law is not static;
It is a dynamic force. It has grown from century to
century, and owes its exposition and development to
the labour of publicists, of text-book writers, jurists,
and agreement between the nations and international
practice. Furthermore, International Law from the
tflth to the 19th Century was professedly limited to
Christian nations of Europe and America, the rest of
the world was considered to consist of savages and
ipucivilised barbarians. But there have been vast
devdopments in the 20th century ; old conceptions
have changed, the so-called uncivilised people, the
•coloured races, have fought in the European theatres
of i^ar, with or against the allies, — ^the British Indian
troops and the Negro forces of America have fought
ail over the globe* International Law must therefore
be extended in ifls scope to include all peoples of the
world living under recognised administrations in definite
societies irrespective of considerations of colour or
•race. Furthermore, while in the 18th and 19th
people living in the ao-oafled colonies were

eonsidered to be unfit for g;>ver3iment and wholly
incompetent to govern themselves, in this century
that eoTicoptiou must be discarded. In 1946
America has definitely engaged to grant full independ-
ence to the Phillipines the Arab countries including
Egypt are independent in fact and in law; India has
been promised independence. This being so, Inter-
national Law must recognise the right of Indians to rise
in revolt against its foreign rulers.

Even in a national state. International Law
recognises the validity and the legality of civil wars.
Every civil war is a definite revolt against constituted
government. A civil war in a national state is noth-
ing but an attempt on the part of one political groxip
or party to overthrow the constituted government and
substitute its own authority therefor. It is really
nothing but a mere change in the form or structure of
the national government. If insurgents in such a civil
war can under International Law engage in a civil war
and acquire the status of belligerents, the greater must
be the right conceded under International Law* to
a subject people to rise in revolt against an external
authority which is in military occupation of another
country, and holds another people under domination,
without any colour of natural right or justification.
In view of the principles enunciated iti the Atlantic
Charter and by President Truman, all people are en-
titled to be free and all foreign rule is unjust and
without any basis under International Law.

Under the rules governing procedure prior tq
the holding of a Court Martial, it is necessary to record
preliminary evidence, as far as possible, in the presence
of the emoused, and when it is finally decided to bring
the persons concerned to trial before Cbuk Martial, the
accused are furnished with a summary of this evidence.
Such a summary had been furnished to the accused in
the present ease. Its perusal made it evident that the
themsd^sres .establdi that

iii

the accused were - members ot a well-organised and
well-disciplined army which was maintained by a
newly-formed State called the Provisional Govern-
ment of Free India. At the trial, voluminous evidence,
oral and documentary, was recorded. Defence
produced high officers of the Foreign Department of
the Japanese Government, and many members, officers
and men of the I.N.A. were also examined as defence
witnesses. At the end, really there was little dispute
as to the actual facts of the case, and Sri Desai was
able to establish— I say successfully — that the facts
were really beyond controversy. He has marshalled
those facts with great skill in his argument, and I
may briefly summarise them here : —

Over 2 millions of Indians were settled prior
to 1941 in various couutries of Bast Asia, for example,
Burma, Malaya, Singapore, Assam, Java, Sumatra,
Borneo, etc. These people considered themselves to
be a homogeneous community and were not the
national or the domiciled subjects of the country
where they resided.

As soon as Japan declared war on Sth
December 1941, the conditions of Indians in East Asia
b^ame very precarious. As country after country in
East Asia was run over by the Japanese in quick
succession in a few months, Indians were left com-
pletely unprotected, open to depredations of all kinds,
and their life, honour and property were entirely at
the mercy of the invaders. Their first thought was
to take such steps as were open to them for their own
security. British power, to which they ipiight possibly
have looked up for protection, had for the
moment disappea,red/ and the future was dark and
uncertain The; demand of the present was insistent.

In February, Singapore feM, and large number
of Indian troops were surrendered %o the Japanese.
Ooi. , Hunt handed !over these troops bag and ■ baggage

to the Japs, aad expressly stated that henceforward
they shoiiid obey orders of the Japs juft as they would
have obeyed the orders of the British, otherwise they
might be punished .

Sri Desai submitted that this open handing
over absolved in law Indian troops from their allegiance
to the British King. This allegiance being purely
legal, when protection was withdrawn, the duty of the
subject to the King was also extinguished. In the case
of the subjects of a nationalstate’ there may or may
not have been a different result, but that questioxi did
not arise here in this case.

It was proved that the Japanese made a clear
offer to the Indian troops to organise, if they wanted
to, as a separate. State for the protection of their own
countrymen in East Asia. This matter was carefully
discussed by the Indian civilians and military people
alike ; the real aims and objects of the Japanese in
making this offer were closely scrutinised. There was
not the least desire or inclination to become a puppet
in the hands of the Japanese ; the real anxiety w’as,
first, protection of the Indians in East Asia, and
secondly, the achievement of freedom of India. This
latter object was also important, because in 1942 there
was a real danger of the collapse of British powe^
in India, and then the existence of a free Indian Govern-
ment to carry on the administration in India was a
matter of vital importance.

Bepresentative Indians living all over East Asia
met in conference in Bangkok, and decided upon the
formation of an Indian Kationai Army. Immediately
after the commencement of hostilities between Japan
and Britain, the Indian independence movement had
been launched, and an Indian Independence League
had been established, and its branches had been formed
in Malaya. After the Bangkok Conference in June
1942, the movement spread all over East Asia.

Branches of the 1. 1. League were formed everywhere
with large memhership. The Indian National Army
was wholly national in the sense that it was manned
and oScered by Indians alone and was also supported
and financed by Indians. Under the stress of circum-
stances it had to buy, or take on a lend and lease basis,
arms, ammunition and military equipment from the
Japs. ■

It wa.s proved that while an I.N.A. was formed
in 1942, it did not engage in any warlike operation
against the British in 1942.

Owing to internal differences and some suspicion
arising out of the vagueness of the statements of
Japanese Ministers in relation to India, the I.N.A. was
disbanded in December 1942, and ceased to function
even on paper as a military organisation. A Council
of Action, however, continued to look after the
security of the Indians in Malaya and elsewhere.

On the arrival of Sri Subhas Chandra Bose in
Singapore in June 1943, the Indian National Movement
took a definite concrete shape. There was immense
enthusiasm and support of Indians of all communities
behind Subhas Chandra Bose. By common consent a
new Indian National State was formed. Subhas
Chandra Bose was by common consent elected to be
its Head. He owed allegiance to this State. He had a.”
Government consisting of many Ministers, and again
all sw^ore allegiance to the newly formed State. Provi-
sional Free Government of India was formed. An
Army, the I.N.A., was organised, "equipped and trained
in strict a eoordanoe with Military Law^ as obtaining in
other countries in Europe and America. This new
State declared war on Britain and America. It was
recognised as an independent Stat@ by many powers
who were then fightingthe British and its ailies. All
frhe Indians in East Asia owned allegiance to this State,
and as many as 2,23,0()0 were proved to have taken the

vi

oath of allegiance to the new State, and out of them at
least over 23,000 actually volunteered to serve among
the combatant ranl^s of the The Provisional

Government had its own funds and resources, and
subsequently acquired its own territories. From 1944
it engaged in active warlike operations against the
British. It took part in the Arakan campaign in 1944 ;
it fought in Burma in 1945.

Sri Desai contended that under Interna-
tional Law the Provisional Free Government complied!
with all the requirements of a sovereign State. Over
2 millions of a homogeneous community were the-
members of the State. The Government carried on,,
in so far as it was possible in the circumstances then
prevailing, all governmental activities. It had nume-
rous Departments. It had a well- organised disciplined
army, it had its own Act, aud it was at war with
Britain.

Sri Desai clearly showed from the evidence thar
suggestions made on behalf of the Prosecution that
Indian prisoners of war had been coerced into enlist-
ii^ in the I.N. A. were baseless. Evidence was almost
unanimous that no pressure of any kind was ever
exercised. Sri Subash Chandra Bose — Netaji as he
was called affectionately throughout East Asia by all
Indians — made it clear over and over again that any
one wlio did not wish to fight, may without the least
hesitation withdraw. This option was given, almost
quixotically, even at the front by some of the accused.
Evidence was also emphatic that volunteers were too
many to be absorbed in the I.N.A., and there was a
large surplus of volunteers. And as Sri Desai said, in
those circumstances it would be ridiculous for anybody
to try to coerce any one to enlist. From Netaji down-
wards, all leaders and officers insisted with almost
painful reiteration, that this was an army for a noble
cause, viz., the liberation of India, that Netaji could
not offer anything but blood and sweat and voil and

tears, that conditioBs of service were bound to be hard
and austere, rations were scanty, and pay was meagre.
With all this, the spirit and morale were high, because
the resolve was great. The Army had its own flag, its
own emblems, its own badges, and was definitely
treated as Allies by the Japanese Government. Sri
Desai pointed out that even in Europe as between
Allies there were unified commands and mutual help
of all kinds. He further insisted that whatever may
have been the intentions of the Japanese Government,
it was clear that the members of the new Indian State
and their Army believed in good faith that they were
fighting on terms of equality, and that when they
entered India they would enter as liberators.
Proclamations were issued by which it was declared
that every inch of Indian territory conquered, would be
administered by the Azad Hind Government, and for
that purpose special officers had been trained for civi
administration.

Sri Desai also discussed at length that the
Azad Hind Government had territories of its own.
Andamans and Nicobar Islands had been formally ceded
to them and had been re-named by them. They had
also some territory in Burma, 15 sq. miles in area under
their direct administration, and they exercised control
over extensive tracts on the Assam border, which
were temporarily occupied by the I.N.A.

It is true that in the text-books on International
Law, great emphasis is laid when dealing with insurgents
on the possession by them of a definite territory.
This must be so in the case of internal rebellions or civil
wars, whether by some of the residents of the
country or by a colony situated outside the mother
country. If the insurgents are able to set up \
independent State, have an organised army, it is obvious
that they cannot live in the clouds, and must have
some definite territories under their control and
administration. The case of Azerbaijan in Persia is

instaace in point. Similariy with a colony like the
American Cobnies in 1775-~^Sri Besai relied greatly upon
the Declaration of Independence issued by Washington
and his colleagues ; — it is equally obvious that the insur-
gents in such colonies may set up a State by denouncing
the rule of the mother country. But the same rale in
International Law Sri Desai argued, would apply with
•equal force to a liberating army coming from outside.
Indians in East Asia were over 2 million in number
but they had no territories of their own. They
resolved to organise themselves for .their own
security as well as for the winning of the freedom of
India. They formed a State, they ^organised an army,
but obviously they could only depend for a territory
of their own either by cession from their allies or by^
the anticipated liberation of their own country.

Desai pointed out that in the two world wars, landlesj^.
Governments were a common feature. In World Wa .
No. 1, Belgium lost all its territory. In World V/a^
No. 2, London was a haven of emigres Governments o
Poland, Belgium, Holland, Czechoslovakia, Yugoslavia
and others, who had for many years not an inch of terri-
tory under their controL They ^ had lost ail" their
possessions. Period of time makes little difference, it
is the fact which matters. Similarly, under modern
circumstances it is perfectly possible for a State to
function as an independent, unit under International
Law, whose, chief aim is to liberate its own territories
from foreign occupation.

I wish to emphasise clearly that Sri Desai was
addressing a legal argument. He was not addressing a
politicaln or a Legislative Assembly. He therefore
insisted that once you find a newly formed State with
a well" organised army carrying on war, then miinioipal
law must cease to apply. The matter passes from the
<lomain oJt ordinary criminal law to the rules, and laws
of civilised war. Amidst the clash of arms the ordinary
.•criminal law becomes silent. He quoted copiously from
text-books, but still more forcibly from declarations

made by British statesmen, including Mr. Churchill in
1937 during the non-intervention controversies arising
out of the civil war in Spain, about the right of
people to rebel against constituted authorities
and their further right to be recognised as belligerents
by neutral countries. He referred to the announce-
ments of General Eisenhower regarding the
status of Maquis in Erance, I invite attention parti-
cularly to a very apposite passage in a leading text
book on International Law, viz., Oppenheim, which
was published in 1945, and which, according to Sri
Desai, constituted the present position /under
International Law. " He further argued that even. under
the municipal law of India, that is to say, the Indian
Penal Code, Section 79 of the Code clearly recognised,
as a justification for any offence — even an offence of
waging war against the King — any law applicable to
the matter, and Sri Besai said that rules of Inter-
national Law are always accepted everywhere in all
civilised countries, in America and in the English
Courts, as rules having the force of law. Therefore
even on the narrow ground of Section 79, a state of
war was a complete »answer to the charge. Anticipat-
ing an argument on the part of the Prosecution based
on allegiance Sri Besai drew a distinction between what
may be called legal allegiance as opposed to neutral
, allegiance. In the first place allegiance involves a
reciprocal obligation of protection on the part of the
Sovereign, and Sri Besai insisted that when at the
meeting held at Barter Park on 16th February
1942, Col, Hunt handed over all officers and men of
the Indian Army, almost body and soul, to the
Japanese, the bond of allegiance was broken. At any
rate the people concerned were justified in believing
and did believe in good faith that the bond no longer
existed. In a free country having self-governing
institutions, a good deal may be said on the virtues of“
allegiance, but to insist upon an everlasting allegiance
on the part of a subject people would be tantamount,
'to asking them to agree to perpetuation of their

y >1 I

ft

*1 '

“•X

slavery. Sri Desai eonten^ed that it Was the right of
every Indian, if he so thought fit, to disclaim his allegi-
ance to the British King and join an army of liberation
tor gaining the freedom of India. Dual allegiance to
King and country may, in the case of free governing
countries, coincide, but in the case of subject people there
is bound to be a conflict of loyalties. The American
Colonies in 1775 deliberately disowned the King in
preference to the country, and the Indians and the I.N.A.
were entitled to do the same.

The accused are charged separately with
murders in that in accordance with the provisions of
the Indian National Army Act some deserters had been
tried by Court Martial and sentenced to death. Sri
Desai in the first place argued that there was no reli-
able evidence that these sentences ,had been in fact
carried out. On the contrary there was evidence that
in inany other cases such sentences of death had been
remitted. In the alternative he argued that any such
separate charge was really groundless in point of law.
The accused, who were members of the I.IsT.A, , were
acting in obedience to superior orders, were units of an
organised army, and could not be tried for individual
acts. Liability, if any, was of their State. They owed
no personal liability at all. There was not the slightest
proof that they had committed any atrocities, so
called, any acts of torture or anything. They had
behaved throughout as honourable men from the highest
motives of devotion and patriotism to their country.
And they were enatied to be treated as P.O.Ws., and
tins ■was precisely the claim which they made when the
I.jSi.A, surrendered in Rangoon and wdTen peirticularly
Cap^ Sahgcd oftered to surrender to a detachment of
the British troops.

I do iiot want to detain readers any further from
a perusal of Sn Desai’ s effective argument. As I have
said, my only regret is that it was not addressed before
a Court of Law like the Federal Court or the High Court

■ h'ixi

in India. Had it bepn, I have no doubt that the
Judaes v^ould have observed, in the words of the Lord
Ohief Justice of England in an equally celebrated case,
■“it was an argument well delivered in acoordanee with
the hi<yhest traditions of the Bar and in furtherance oi
iustica” SriDesai argued not only as a lawyer but
as an Indian on behalf of brother Indians, who had
sacrificed their all in a notable endeavour for gaming
the lost freedom of their, country according to Lieir
lights.

December 27 , 1945,

Kailash Nath Katjh

Form of order for the Assembly of a General or
District Court-Martial under the ■

Indian Army Act.

Orders by Brigadier L. L. THWAYTES, I. A.
Commanding Eahadurgarh Area.

Place Delhi Cantl. Date 25 Oct., ’45.

The detail of ofificers as mentioned below
will assemble at the Red Fort, Delhi pn the 5th ^

day of ISIovember 1945 for the purpof^e of trying !^o. i. C. 22 fi, Oiipt. P.
by a General Coisrt-martiai the accused (persons) Paiuei'.^

named in the mnrgin (and such other person or 33 ^^ Lieut. G.

persons as may be brought before them) Dhiiioa, t,/i4 puu d-

The senior officer to sit as President, ' all attached c.S..

MEMBERS:

Major-Geneial A. B, BLAXLAND, C. B., O. B. E.,

Indian Army.

Brigadier A J. H. BOTJRKE, Indian Army.

Lieut Coi 0 R. STOTT, M.C,I.R. E. O.

Lieut. Coi. T. 1 . STEVENSON, C. I. E , M. B. E.,

M. C., R. Garb. Rif:

Lieut. Col. NASIR ALI KHAN, 7 Rajput Beet.

Major B. PRiTAM SINGH, (L C. 44b), I. A. C.

Major Banwari Lai, (I. E. C, 219), 15 Punjab Regt,

WAITING MEMBERS :

Lieut. Col. C. H. JACKSON, I. R. B. O,

Major S. S. PANDIT, (L E. C. 766). 1 Punjab
Regt.

Capt. GURDIAL SINGH RANDHAWA,

(L C. K. O. * 45 ), 13 D. C. O. Lancers.

JUDGE^ADVOCATE :

Col. F.C.A. KER jN O B.E , is a^pomied Judge
D, J. A. G., Centra i Command, Advocate,

INTERPRETER ;

(To be appointed by the Court pursuant to I. A A.

Rule 76.)

Counsel for ike Pin^secutor, Sir Nasservanji P,

Engineer, Advocate General of India.

Lt. Coi. P. WALsH, A A.G., G.H. Q , is appointed
Prosecutor.

The convening offieerdeciares thatitis expei-
dient to allow counsel to appear on behalf of the
Prosecutor and accused at this trial.

The accused will be warned, and all witnesses
duly required to attend.

The prc ceedings (of which only one copy is
required) will be forwarded to H.Q. -Bahadurgarb
Area.

Signed this 25th day of October, 1945.

(Sd.)

Brig. Comd. Bahadurgarh Area

♦ . ./ Xi

COUNSEL

1. Sri Bbulabhai 3 \ Advocate.

2. The Rt. Hon. Sir T. B. Sapru, P. C., Advocate.

3. Pandit Jawah'ar Lai Nehru, Bar-at-law.

4. Dr. Kailaah Nath Katju, Advocate.

5. M. Asaf AH, Bar-at Law.

6. Bakhshi Sir Tek Chand, late Judge, Lahore Hio-h

Court. .

7. Rai Bahdur Badri Dass, Advocate.

■8. Kanwar Sir Dalip Singh, Bar-at-Law,' late
Judge, Lahore High Court.

9. Dr. P.K. Sen, late Judge, Patna High Court,

10. Mohd. Shafi Daudi, Advocate.

11. Inder Deo Dua, Advocate,

12. Shiv Kumar Shastri, Bar-at-Law.

13. Ranbeer Chand Soni, Bar-at-Law.

14. Rajinder Narain, Advocate. ^

15. Sultan Yar Khan,, Advocate.

16. Sri Narain Andley, Advocate.

17. J. K. Kha ana, Advocate.

Charge Sheet ' '

shah

Ho lO Regiment, and

DHILLOV ?f,A I ^ C GHEBAKHSH SINGH

to section 121 of the Indian Penal Code ^ agamst tnree

accused jointly' ''

-in that they together-

-t* m Malaya, at Rangoon, in the

vicimty of Popa, in the vicinity of Kvaukoadanno-
|nd elsewhere in Burma, between tC r^onth ff
September 1942 and the 26th day of April “945 d"d
^Tndir -^“5esty tL E^'p^-r

Bay MUR nm T®/ OFFENCE, that is to tndCharg.

ht. Gur{»a^sfa

-in that he. ?“uf

March * 1945 ^*lfw ^°P“ Burma, on or about 6th

«rcoJ^^ni«^er““«

COMMIXriNG A CIVIL OFFENCF +Tnof •
to say ABETMENT, co- ' rv to ^on mo !Ci
the Indian Penal Code, of an ofFar,,..' ■

under Section 302 of the Ir^'an PenarCtode'”^^

-in that he-

did

as specified in the 2nd charge hereof wWa
was committed in consequence of such abeLit"®

i/xifciD la 3rd Charge
fcion 109 of ^-AA. Sec, 41
. , . . t' gainst. lihe said

CapfcP.K.
Sahgal
■alone

4tii Charge
l.AA Sec- 4i

auainst fciie s»id

Lt- Gurbakhsh
Singh Bhillon

alone

5th Charge.

I A- A. Sec 41
jigainst rh« said
Capt. P K
Sahgal
«.lonr

6th Charge-
l.A.A Sec, 41
flgaiiisc tiie said
Lt. Gurbaksh
Singh Dhillon
alone

7th Charge
I A A. Sec. 41
{iwainst the said

Capt. P. K
Sahgal

ai ue

8th Charge.

I A-A. Section

ngain.st tlje said
■; ;Lt. Cnrhateh
Singh l^hiibh
alom;

COMMiartlNO A CIVIL OFFENCE, that is to.
say, MURDER, contrary to Section, 302 of the Indian
Penal Code

-in that he-
at or near Fopa Hill in Burma, on or about 6th.
Marc 1946, by causing the death of DuH Chand
did ommit murder.

CQMMlT riKO A CIVIL OFFENCE, that is to-
say, abetment, contrary to Section 109 of the Indi-
an Penal Code of an offence punishable under Section
302 of the Indian Penal Code

-in that he-
at or near Popa Hill, on or about 6th Mar(!>h 1941
did abet the offence of the murder of Dull Chand. a»
specified in the 4th charge hereof, which offence was.
committed in consequence of such abetment.

COMMITTED A CIVIL OFFENCE, that is to
say, MURDER, contrary to Section 302 of the Indian
Penal Code

-in that he-
at or near Popa Hill in Burma, on or about 6th
March 1945, by causing the death of Daryao Singh, did
commit murdW.

COMMITTING A CIVIL OFFENCE, that is to
say, ABETMENT, contrary to Section 09 of the*
Indian Penal Code, of an offence punishable under >
Section 302 of the Indian Penal Code

-in that he-
at or near Popa Hill, on or about 6th March 1945*;
did abet the offence of the murder of Daryao Singh
as specified in the 6th charge hereof, which ofience
was committed in consequence of such abetment,

COMMITTING A CIVIL OFFENCE, that is to
say, MURDER, contrary to Section 302 of the Indian/
Pciial Code

-in that he-
at or near Popa Hill in Burma, on or about
Gth March 1945, by causing the death of Dharam Singh,,
did commit murder.

XVI

COMMITTED A CIVIL OFFENCE, that is' to
say, ABETMENT, contrary to Section 109 of the
Indian Penal Code of an offence punishable under
section 302 of the Indian Penal Code

-in that he-

0th Charge.

I A. A Section
41

against the saiti

Cept.P K,
Sahga!

alone

at or near Popa Hill, on or about 6th
March 1945, did abet the offence of the murder of
Dharama Singh as specified in the 8th charge hereof,
which offence was committed in consequence of such
abetment.

COMMITTING A CIVIL OFFENCE, that is to
say, ABETMENT, contrary to Section 109 of the
Indian Penal Code, of an offence punishable under
Section 302 of the Indian Penal Code

-in that he-

10th Charge-
I. A. A. Section
41

against the said

C^pt. Shah
Nawaz Khan

alone

at or near Popa Hill in Burma, on or about 29th
March 1945, did abet the murder by one Khazin Shah
and one Ay a Singh, of Gunner Mohammad Hussain
of H. K. S. B. A., which offence was committed in
consequence of such abetment.

(Sd.)-~

CoL,

Comdg.,

Place Delhi

O.S/D. L C-Cl)

Dated 17th September 1945. Delhi.

DEFENCE ADDRESS

BY

SRI BHULABHAI J. DESAI

During the last many days you have heard
evidence on the two, charges with which my clients;
the accused before you, have been arraigned. Shortly
stated, the two charges are waging war against the
King and, without detailing anything, murder and
abetment of murder, in that certain deserters -were
tried and ordered to be shot. M_y submission to the
Court is that substantially there is really one charge
before the Court, because in so far as the charge of
murder is concerned, it is a part of the first charge; and
I say so for this reason that it be quite possible,'

in the case of a charge of w^ing ^ar against the..
King# to be able to charge every single act of firisrg:
a shot, which would be, I think, reducio ad ahsurdeni^
and therefore it will fee my duty later on to point out
to the Court that really and truly there is only, one
charge before the Court and that is is^aging war against
the King, Evidence has been\ admitted on other
matters to which I do not wish at this si;age to' refer,;
m that for the uioment, I will occupy the time of the
Court for -the purpose of considering what facts. have
been established in support of the first charge, namely,
waging Var against the King ; and in due course it will
also be my duty to point out to the Court that in so
far as the second charg# is concerned, there is no!
foundation in fact for it except to this extent that in
reference to the four persons who are alleged to have
been shot there is on record evidence that they
were tried and sentence passed. In reference to.
Muhammed Hussain, there is nothing on record , td
show that any sentence was passed. In all these

oases it will be my duty to submit that on the evidence
the Court is bound to come to the conclusion that
though sentence was passed in one case and
not at all passed in the other, none of these sen-
tences was actually carried out. That is the nature of
the examination, on facts which will be necessary for
me to place before this Honourable Court.

There are one or two matters which I am bound
to mention to the Court before I come to the actual
facts of the case. This case raisbs issues which are
not of the normal t3^e which a Court Martial is called
upon to decide, because most, if not all, of such cases are
generally cases of individual derelection of duty or
individual offences. Here is a case in which, I venture
to say — and the evidence supports it— that it is not at
aU a case of what you might call three individuals
waging war against the King. The evidence amply bears
out the fact that these men charged before you were
a part of an organised army which waged war against
the King even according to the Prosecution. Therefore
the case before the Court is not a personal case of any
kind or sort. The honour and the law of the Indian
National Army are on trial before this Court.
What is now on trial before the Court is the
right to wage war with immurJly on the part of a
subject race for their liberation. I shall be able to
cite authorities on International Law that a nation
or part of a nation does reach a stage where it
is entitled to wage war for its liberation, and
I shall be able to prove that point to your Honours’
satisfaction.

There is another thing I wish to say, and I say
it with a certain degree of earnestness. This case has
naturally aroused a considerable amount of public
interest. It is not for me to say whether it is right or not
but the fact remains that its is so, and opinions have been
expressed from the point of view of the puKlio and
£K>m the point of view of what I might caU

‘official sources’ beginrimg with the Viceroy of India*
You, Sirs, having sworn to do Justice to these
men on the evidence before you will, I have not the
smallest doubt, come to your own decision guided
by your conscience and entirely unaffected by opi-
nions for or against them. For in all trials of this
kind— and In a few of them I have had the honour
to be engaged — it is very difficult for the human
mind to maintain that detachment which Justice
requires. In the case of Juries I have had to cau-
tion them against the use or abuse of the effect
of public expressions of opinions on matters which
it is for them to decide. In this case what I wish
to say is this. Having studied the rules which guide
the proceedings before this Court I find that you,
Sirs, are the judges both of law and of fact. I am
aware that the Judge- Advocate who is your adviser,
will take care to do justice to everything that myself
or my learned friend on the other side will
place before you on questions of law and fact, and
while you will very seriously regard his advice in
the end, the final decision is ^^our privilege and your
responsibility. Therefdre what I might have done in
another place I do not do before you and that
is, I caoinot say that I will address the Judge on law
and the Jury on the facts. There it is an easier process
because I must confess that before a trained Judge
it is easier to deal with the question of law than
before a tribunal of this character. At the same
time I have this consolation that sometimes if the
law is plain — as I submit it is in this case, it will
probably be much easier, appealing to commoiusense,
to establish the law on which I rely, and I
desire to ask your indulgence and your atten-
tion in the somewhat difficult task which I am
undertaking. •

My next submission to the Court is that I
desire, as far as possible, to state categorically the
conclusions of fact which are established in this case.

t

Having done that I will proceed to deal with the
law a;^hcable to them. In dealing with any single
Item shonld any donht arise in the Court’s Lad I
trust that you will be pleased to tell me, so that, if it
IS necessary, I will go into the details of evidence
because as at present ^vised, I do not desire, unless
there IS a real doubt about it, to weary you with
reading over 250 pages of evidence and about 150
pages of exhibits, which are before the Court. A
few important ones I will certainly read where
necessary, jiving regard to the attention which the
Court has paid to the evidence as it was recorded,
l will avoid reading them in extenso. ■

1 , r With these remaris I now proceed to place
before the Court what I submit are the conclusions of
tact 3 ustmed hj evidence. Before I do that I will
give you a few important events. In the month of
December 1941, war by Japan against
Bntmn and ^mca. Then followed certain events
which are the subject-matter of controversy to a
certain extent before this Court. The next event of
importance is the surrendSr of the British Indian forces
at Singapore, which took place on 15th February
and then the most important material event took
place on 17th February at Farrer Park.

+ 1 , r. importance, after that which

formation

otwhat l shall shortly descnbe ,as the first Indian
Rational Army in -the month of September 1942.
xne next event of importance is the dissolution of that

1942. and the arrest
of Capt. Mohan Singh. The next important events
mere^ter are the efforts which were being made for the
foi^tion of the second Ind||n National Army. On
2nd July 1943, Sri Subhas Chandra Bose arrived
m Singapore. He later took command of the IntHan
JNationm Army and there was a conference of what is
called Greater East Asia attended by Indians, with

delegates belonging to tbe Indian Indepen-*
denee League from different parts of the Far Eastern
countries. One of the resolntiohs at that Conference
was that a Provisional Government of Free India
should he established. The next event of importance
is that on the 21st October 1943 there was proclaim-
ed a Provisional Government of Free India which
for brevity I will call "Pfdyisional Government’. That
Proclamation is one to which I shall refer later, but
now I will try to give the Court events of importance
which the Court will have to bear in mind. On the
proclamation of that Government the different Ministers
concerned with the functions of the State took Oaths of
Allegiance,, of course headed by Netaji Subhas Chandra
Bose as the head of the State, The next event of
importance is the declaration of war by that Govern-
ment on Britain and America. The next event of
importance thereafter is that so far as the I. W. A. was'
concerned, it began to carry out its functions under the
orders of the new State. Thereafter the events of
importance so far as the acfual facts are concerned,
are only three : the movement of this Government
from Singapore to Rangoon ; the movement of the
Indian National Army from Burma into, beyond and
within the territories of India right up to Kohima ; and
the rest, dealing with the retreat of that Army
back again until the event which took place at
Rangoon slightly before, at the time, and slightly
after the occupation of Burma by the British Forces.
These, Sirs, are the main undisputed events with
which the Court is concerned. Bearing in mind
these events, I shall now place before the Court the
conclusions of facts which we submit have been
established either in -examination of the evidence
of the prosecution *or in the affihnative evidence
which we have caEed in defence.

The first conclusion of fact which we ask this
Court to accept is that the Provisional Government of
Free India was formally established and proclaimed.

I submit, Sirs, there can be no doubt about this ev en^
and no cross-examination of witnesses who have been
called to prove that event, as far as I can see, has been
seriously attempted* You have to remember, Sirs,
the picture of the proclamation of that Government
and Exhibits put in on that point. Before I proceed any
further, I wish to call attention to that proclamation*
It is Exhibit EFFE before this. Court. I do not
wish to read the whole of that document; the only
passages which I wish to read are passages which bear
on the issue before this Court.

(Reads paragraph 2 of Exhibit FFFF)

Then I do not need to read the next paragraph.

(Reads the next paragraph beginning with
words ‘‘Thus on the event of the present
world war” and ending with the words
“total mobilization”.)

I stop here to submit to the Court that evidence has
been adduced as to the number of Indians in East
Asia and the figure mentioned here is more or less
what is borne out before the Court.

(Reads rest of the paragraph up to the
word ‘existence’.)

I will read the last but one paragraph.

(Reads last but one paragraph of Exhibit EF-
FF beginning with the words “It will be
the task of the Provi^nal Government”
and ending with the *rd ‘“freedom.”)

Then follows the signature of the members of
the Government. The reason why I called attention
to this document is the purpose for which the Provision-
al Government was formed, and the means by w^hich

that Provisional Government intended to carry out its
purpose. The fact that it failed to achieve its purpose
is entirely irrelevant to the issue before this Court.
That is the first fact which we say has been established.
The second fact which we say has been established
is that it was an organised Government. It does not
require many words to establish that proposition.
Witnesses have spoken before the Court as to the alloca-
tion of duties which appear at the end of the docu-
ment which I have just read to the Court, and it is
also in evidence before the Court that the Indian Inde-
pendence League became the executive of the Provi-
sional Government which organized, so far as it was pos-
sible to do in those warlike conditions, the care of
the people who owed aEe.ianceto it. InHhe month
of June 1944, as the evidence is quite clear — it is also
in the Exhibit — in Malaya alone, 2,30,000 persons
actually took written Oaths of Allegiance to the Govern-
ment. That was in June 1944, and it is in
evidence that thereafter the process continued. The
object of stating the figures is that it was not a case
of a Government of what you may call, or what some-
body being my opponent may facetiously call, a set of
rebels, a desultory sort of crowd of no consequence.

I wish to give a lie to that kind of suggestion, and
that is the reason why I suggest that the Provisional
Government was an organized Government to whom
the whole cf the two .million odd people owed allegiance,
and out of whom 2,30,000 persons actually took the
Oath of Allegiance in Malaya.

Then, Sic, the next fact which I submit is establi-
shed before the Court is that this Government was
recognized by the Axis powers. I use that expression
briefly because it is qi^^ unnecessary either in law or
in fact to prove that the recognition must be by a parti-
cular number of Governments or by a particular class of
Governments. The recognition is proof and more than
proof that it had the right to declare war for the purpose
for which it intended w fight, and having the right to
declare war in so. far as its armies were, concerned they

3>ecame subject to the interactional laws of war.

On the question of recognition, I wish to call
attention to certain cross-examination by my learned
friend. Of course in so far as recognition by Germany
or Italy was concerned there could be no cross-exami-
nation and none was attempted. But with reference
to certain East Aim matters in those days, a suggestion
was made that those Governments were under the
control of Japan. I for my part, with Very great
respect, fail to understand the significance of the sugges-
tion. Supposing Japan had an Empire, that C to say
succeeded in keeping the territories it conquered with-
out giving Jbhem liberty, the recognition would be none
the less effective because it makes no difference
whether and which Government recognised this parti-
cular Government of Free India. The point still
remains, and I assert that the recognition is but
Sb proof of what. I may call a statehood which gives it
the capacity of declaring and making war for the
liberation of its own countrymen. The material point
therefore is . whether it had attained that degree
of statehood which gave it that power. Once you.
have a State which can and is entitled to declare war,
the war itself is its own justification. There is no
question that any two independent States have a right
to declare war. Any act done in the prosecution oi
that war is justified by the "mere fact of the
war itself. Barring this, it may be asked why
trials are going on in parts of Asia and elsewhere, and
in Germany. In fact they themselves emphasize the
truth of the correctness of the proposition that any act
done in due prosecution of war cannot be the subject
of any municipal court by w^ of examination. What
has happened is that in addition to the due prosecution
of war according to civilised laws, individuals have
been guilty of acts outside the pale of civilised trarfare,
'which we popularly call now war crimes. But the very
fact that you can only deal with and do deal with war
crimes, emphatically and clearly proves that in so far

■-m -v ■

«.asthe normal cMlised conduct ot trar is concerned
including the use of an atomic bomb, is outside the
pale of examination by way of right or wrong by
any municipal tribunal.

Then Sirs, the next fact which I submit is
established is that this State had an army which was
properly organised, having its own distinctive badges
and emblems, functioning under regularly appointed
officers. I am obliged to the Prosecution in this
matter for I was spared the nefeessity of having to prove
this ' proposition. They * put in document' after
document to show that the Indian National Army was
properly organised. First, that it was regulated by
an Indian National Army Act. The only point as
far as I could see from the cross-examination which
was made was with reference to certain items of
coi^oral punishment. On that it is necessary to
point out to the Court that for the moment those
who pursue that course forget the course of legisla-
tion in British India itself. It is true that Lieut. Nag
told the Court that apart from the Indian Army Act
certain provisions relafei ng to corporal punishment
were incorporated in the Indian National Army Act.
It was probably forgotten that a little while before,
in the Indian Army Act were incorporated provisions
in Section 45 of that Act, headed ^‘Corporal
Punishment.” I am reading from Section 45 of the
Indian Army Act of 191 1:

“Where any person subjectto this Act, and under
the rank of warrant officer—

(a) on active seyice, is guilty of any offence;

or

(b) at any time is guilty of the offence specified
in clause (d) of section 31: or

(c) at any time is guilty of a civil offenee

which, would be punishable w\th whipping
under the law of British India, and is
triable by court-martial under this Act,

it shall be lawful for a court-martial to award for that
offence corporal punishment not exceeding thirty
lashes.”

It is true that about the time of this war this
particular provision was omitted. But it is a mistake
to think that a similar provision in the Indian Statute
Law did not exist. As a matter of fact, in so far as
the Defence of India Act and certain Ordinances are
concerned, the provision was definitely made, making
corporal punishment as part of the punishment applic-
able to^ the personnel of the Indian Army. Ordinance
37 of 1943 practically replaced the provisions of the
Indian Army Act which were not found in it; a certain
amount of effort was made as if under an Act
governing a civilised army corporal punishment was not
permissible as against the provisions which were to be
found in the Indian National Army Act. I am quite
certain that it was done under misapprehen-
sion.

The Military Operation Areas Special Powers
Ordinance, Part II, Sections 20 and 23 read :

‘‘Sec. 22: Whoever commits an offence
punishable under Section 121-A, 122, 125 or 131 of the
Indian Penal Code (XLV of 1860) may, in lieu of any
punishment to which he is liable under the said code,
be punished with death.

“Sec. 23 : Whoever (Entravenes any of the
provisions of Rule 36 of the Defence of India Rules or
is deemed under the provisions of the said Rules fco have
contravened such provision, may, in lieu of any
punishment to which he is liable under the said Rules,
be punished with death, or with whipping, in addition

10

to any punishment to which he is liable under the said
Eules.’

I will be able if necessary to read out all the
Eules which clearly show that under the Indian Law,
taken as a whole, the punishment with reference to
whipping exists, such as the provision which was made
in the Indian Army Act. I have got, Sirs, a summary
made out of the provisions with reference to whipping
which I shall afterwards hand over to the Court. Shortly
stated, my submission to the Court is this that the
only attack made by the Advocate- General
on the making and framing of the Indian National
Army Act, was the provision with reference to
whipping, and I submit to the Court that that was
done under a misapprehension, for it is as much a part,
though not technically quite, in the Indian Army Act ^
but in the Defence of India Eules and the Ordinance.

It makes no difference. But taking in the aggregate,

Indian legislation does sanction corporal punishment
throughout the period with which we are concerned
and therefore it is that I say and submit to the Court
that this was a properly organised army, having a
code of its own, which for all practical purposes is the
Indian Army Act and any condemnation of the rules
under which that army functioned is a condemnation
of the Indian Army Act itself, which I submit is not
the purpose of the Prosecution in this case. Therefore,
we come back, kSirs, to this point that this was an
organized army functioning under a civilised code.

As regards the appointment of officers and the regular
method by which it was done, as regards the different
branches and the functions, you, Sirs, are more compe-
tent than myself to judge from the decuments which
have been placed before you. They are in the shape of
army orders or orders of the day and so on, which have
been placed before the Court. On a question of fact ;

we have arrived so far that there was a state which dec- I

lared war for the purpose of fighting for the [

liberation of the country and it had an organised army, ^ !

11

orgariised under a code which for all practical, sub-
stantial purposcis, accorded with the aggregate law on
the same subject preTailing in British India. I use
the word aggregate, because I must bring in the other
laws also which provided for and permitted the inflic-
tion of corporal punishment in all these cases.

The next fact which is established beyond aU
dispute was that the object of the declaration of war
by the Provisional Government of Free India was the
liberation of India.

The next important fact which I think
must be mentioned is that the Indian National
Army was formed with two purposes. The main
purpose was the securing the liberation of India,
and no doubt. Sirs, from the most important witness,
that the prosecution called, it has never been
difficult to establish that that was the object with
which that Army was formed and that was the
object with which the individuals who joined it joined
it. The other object also was which was somewhat-
subordinate, but useful purpose, the protection
such as could be afforded to the Indian inhabitants
of Burma and Malaya, particularly during the days
when law and order in those parts of the country was
poorly looked after, the lives and the honour and the
property of the people was not quite so easily
protected.

The first object is the one which the army was-
called upon to fulfil as a part of its duties. Again taking,
the evidence as a whole, I submit it has been amply
proved before this Court that the I.N. A. was formed
with the object of fighting for the liberation of India and
also with the object of protecting the lives, honour and
property of people resiffing in East Asia at that time.

The next point which is established, I submit,
is this — though I speak with less confidence because

12 .

I do not see it admitted — ^bnt the fact has been
proved and it is my duty to examine the
evidence on it, is that the Japanese. Government
or the Nippon Government as it is called, ceded to
the new Indian State the islands of Nicobar and
Andamaxis, that the Indian State acquired territory
in the form of Ziawadi, .which was about fifty square
miles in area, and that it administered, for a period of
four to six months the Manipur and Vishnupur
areas.

As regards the first, in so far as Lieut. Nag was
concerned, he has given definite evidence .that the two
islands were ceded. The evidence falls under three
parts ; , the first is a . declaration to that effect by the
Japanese Government, amiounced by a document which
has been proved before this Court. That document
is a statement by , General Tojo that they were
about’ to concede the islands of Andamans and
Nicobar to, the Free Indian Government. That
document is UUUU. ( Counsel reads relevant
portions of the document) : This was on the 5th
November 1943. .

Then followed events which clearly showed that
that purpose was carried out. You. have in .evidence
that that declaration was made and that the new Indian
State was called upon to administer it by means of a
Commissioner, that a Oommissioner was in . fact
^PP^i^fod, that the Commissioner in fact went, . and
you have evidence of a definite ceremony at which the
naval ana military authorities then in charge handed
over the islands to the Commissioner on behalf of the
Indian State at Port [Blair. These are points on which,
as far as I am able to see the evidence, very little
criticism has been made by way of cross-examina"
tion.

The point on which there has been a difference
between the Prosecution and ourselves is the actual form

and extent of the admiiustration of the islands. But
it is clearly a misconception to confuse the ceding of a
territory and taking over every item of a dministration
of that territory, particularly under the conditions then
prevailing. The fact is — and it is commonsense I sub-
mit — that a house might well be sold and completely
sold, sold outright and yet possession for a time
may not be wholly given. It is a familiar illustration I
am giving, so that it is easy to appreciate.
In the somewhat elaborate cross-examination for
this purpose of Gol. Loganadhan, it was intended
merely to point out that the whole of the
administration was not taken over — which is not
denied — he said it over and over again; and I think it
is established and I ask the Court to hold it is establi-
shed that he went for the purpose of taking over the
administration. It is true that he did not take over
more than two items — one, education* and the fact that
the area was small and the people ignorant is hardly
an argument that he had not taken over the adminis-
tration. I dare say in other countries where the
standard of literacy is something like 99 percent,
there are many more schools than in this unfortunate
country where the standard of literacy is probably 15
percent. Therefore the argument that schools were
few and the expenditure was so little — I think there
is very little point in the cross-examination on this
matter. I did enter a protest but it was overruled and
it is not for me to say anything more about it. But
you do not detract from the cession of a territory in
quantity or time by pointing out that the whole of
the administration was not and could not be taken
over. Colonel Loganadhan told the Court again and
again^ — almost painfully over again — of the fact that
until he got complete control of the police in the matter
of spies (which seemed to be a sore point with the
local inhabitants), he was not prepared to takeover
any other part of the administration. But there
is one significant thing that my learned friend got
out of Colonel Loganadhan, and that is that one of

the officers who went with Mm, administered what yon
may call very elementary justice which it was possible
to do in the conditions then prevailing in the islands.
So much so that having asked it and got it, he tried
to shake it off but he could not, and it was proved to
the hilt that Justice and Education were taken over.
True, poli ce was not taken over because the J apanese
from the point of view of defence were keen on retain-
ing control over what you may call the spy population
of these islands. But one thing remains and that is the
most significant fact, and that is the renaming of the
islands. So that any amount of examination as to
why or how month by month or day by, day further
acts of administration were not made, cannot possibly
get rid of three important facts : first, the clear solemn
declaration that the islands would be handed over
shortly. A suggestion was made— -it remained at a
suggestion only^ — ^that they would he handed over after
the war. Where my friend got the words after the
war '' I do not know. I hope he will point it out and
that is why I read out this document. The document
clearly shows that they were to be very shortly
handed over.

The second fact was that it was to be adminis-
tered through a Commissioner, which was a definite
proposition made at that time. A Commissioner was
in fact nominated by the Provisional Government
and the Commissioner in fact reached there
and began to function. No doubt, as in every case of
tMskind, I presume this Court will take almost judicial
notice of the fact as to how Germany and other
countries are being administered today. No doubt the
man was qualified, and he may book the best educated
man from amongst his staffs and he hoped that the local
machinery would soon adapt itself for the purpose of
continuing the administration, because it is unthinkable
that you can transfer quickly and at one stroke the
whole administrative machinery from one country to-
another. Anybody who is familiar with the adminis-

tration of this very country^ is aware that Britain
administers this country throngh practically the entire
machinery of the Indian people themselves. So that the
number of men and all the rest of it, I submit, is so
much, without disrespect, hot air. The real point
is, were or were not the islands ceded ? And I say there
is so much evidence that they were.

The last point is the re-naming of the islands :
Shahid and Swaraj,

I submit that it is clearly established on the
evidence before this court that though by reason of
the exigencies of the situation, it may not have been
possible to take over the complete administration, in
law and in fact the islands were given over to the
Indian State , or to what I would call the Provisional
Government.

N’ext I deal with the question of Ziawadi.
The position is this, accordance to the evidence on the
record : that this was a property, about 5.0 sq. miles
in area, with 15,000 inhabitants who were Indians.
It had on it a sugar factory and various other means
of production, agricultural or otherwise and every
branch of administration of that territory was carried
out by men appointed by the Indian National Army
and belonging to the Azad Hind DaL

My learned friend did not even venture, in the
course ' of cross-examination, to challenge the truth of
the statements made before this court by witness
Shiv Singh and Arshad on this head. Shiv Singh
said that every branch of administration was taken
over. He gave the name of the person who was the
officer in charge of every branch of administration, - Re-
venue, Police, P,W.D., justice both civil and criminal.
Under these circumstances, the legal position is
simple, I shall came to it in greater detail afterwards,
japan conquered Burma. By right of conquest

it was in a position to dispose as it liked of the whole
or any portion of any territory and as the witness
told you clearly, by reason of the agreement between
the Provisional Government and the Nippon Govern-
ment, this territory was handed over as a part of the
liberated territory to the I. A. and the Azad Hind
Hal. At this stage let me point out to the Court that
the Azad Hind Dal, it has been proved, was an
organisation of men trained for the purpose of adminis-
tering areas as soon as they came under the control
OT occupation of the I. N. A. or as soon as they were
handed over to them. I must also remind the Court
that it has been proved beyond question — ^because as
far as I see there was no cross-examination or
effective cross-examination any way, that as soon as the
I. N. A. crossed the borders of Burma into India a
proclamation was issued in two parts, one signed by
the Head of the Indian State and the other signed
by General Kawabe under the orders of the South
Eastern Command. In that it was distinctly stated
that any part of the Indian territory which would be
acquired by conquest or otherwise by the J apanese Army
would be handed over to the I. N, A. for the purpose of
forming part of the liberated territory and to be admi-
nistered by them. That is the history of the ceding.

Then we come to Manipur and Vishnupur areas.
Evidence has been given before the Court without any
reasonable demur to the effect that during the time the
Japanese and the I.N. A. were operating, those portions
of India were in fact administered by the I.N.A. through
its organisation, the Azad Hind Bal, and the area was
15,000 square miles. The duration of administration
has no bearing on this issue, for indeed it can happen,
as it did happen in this war, that territories were as
easily acquired as lost. This Court is not concerned
with the question of duration. I would ask the
Court to hold that the two islands, Andamans and
Nicobar, were in fact ceded, that Ziawadi became a
part of liberated Indian territory, and that, though for a

short period of time, Manipur and Yishnnpiir areas
were exactly in the same position.

The next point to which I wish to refer is the
resources of the State. In order to judge of the
existence of the State,#the resources of the State is
also one of the matters to be considered. It has been
proved before the Court that some 20 crores of rupees
were in fact donated to the State, out of which was
maintained the cml government and the army. Dina
Nath, who impressed this Court, gave extremely clear
evidence on this head. He' was one of the Directors of
the Azad Hind Bank and he told the Court that
between Burma and Malaya, during that short period
of time, the State had resources to the tune of 20
crores of rupees, in addition to the produce of Ziawadi.
It is a remarkable thing to notice that on the reoccupa-
tion of Burma and Malaya every single document
which was in the possession of this Indian State
was found intact. It was amazing. See the
monthly reports which the Prosecution was able to
produce with reference to the administration of the
Andamans and Nicobars 1 It only emphasizes — and
I wish to make a point of this — ^that there was a
complete organisation, and that organisation was
as good as could reasonably be expected. Thai
alone accounts for half the documents which my
learned friend was able to produce.

The point is that we were a little handicapped
owing to the lack of certain documents. As the
evidence before the Court shows, this Bank was closed
after the occupation of Rangoon, and in fact it is in
evidence that some 35 lakhs worth of property was
sequestered, I am not complaining of the sequ^tra-
tion. That I think was the right of the conquerors.
What I am saying is that in so far as the resources
of the State were concerned, they were full and
adequate for the purposes which the new State had
then in view.

Here I wisb. to refer to a bulletin. It is not
what I might call technical evidence before tho
Court but it will be my duty to submit that it is a
document of which the Court should take judicial
notice. The document is dated the 10th November
1945 and called Stamp Collecting.

Sir N. P. Engineer: My learned friend is*
reading from a document which has hot been accepted..

Sri Desai : I am only making a submission,
to the Court. Ts it my friend’s contention that if I
read a book on law, it should be put in as an exhibit?

Judge- Advocate : The document itself cannot
be admitted at this stage.

Sri Desai : All I am doing now is to make-
a submission to the Court.

Section 57 says:

“The Court shall take Jhdihial notice of the
foBowing facts:

“In all these cases and also in' all matters of
published history, literature,; science ^ or art
the Court may resort, for ..help . to appro-
priate books or documents of reference.”

And if the Learned Advocate- General solemnly
suggests that every single book of history, literature,
science, and art is to be an exhibit before it can be-
referred to, I am very sorry that it is a statement which
defeats itself.

Judge- Advocate: Mr. Desai, will you readout
what you want the Court tatake judicial notice of ?

Sri Desai: May I not apply that the Court may
consider it? All I am asking is that this applicatioii^be

V

considered. Of course the Court may reject it ; I am not
suggesting that the Court is bound to accept it. My
submission is that under Section 57 it may be taken
judicial notice of.

issue of November
10, 1945 of |a weekly publication called “Stamp

Collecting published in London and edited by
Douglas Armstrong, a ■well-known philatelist. In that
issue at page 136, column I, the following appears :

J

“ Imphal Stamp that failed.

" So confident were the Japs that they
■would occupy Imphal, when they
invaded Southern Assam that they
actually prepared a special issue of
stamps for use there. Needless to say
these stamps failed to materialise, but
our correspondent. Flying OfiScer T.A.
Broomhead, informs us that he has
seen proof impressions in the hands
of the man who was responsible for the
printing (in Rangoon). Two denomi-
nations appear to have been prepared,
viz., 3 pice plum and 1 anna red, -both in
the same design and roughly perforated
llix9| {approx.) The subject of the vig-
nette(illustrated) is the old Mogul Fortress
at Old Delhi accompanied by the slogan
“On 'to Delhi Bi-lingual inscription
reads “PROVISIONAL GOVERNMENT
OF FREE INDIA”. When it became
evident that the Imphal stamps would
not be required, the dies were destroyed
and the bulk supply of sheets printed in
readiness was burnt with the exception
of a small quantity salvaged by the
prints.”

^ top comer on the left-hand side is a facsimile
01 the stamp referred to in the above qnotation.

docnment should be
taken jadimal notice of in support inter alia of proof
that the Provisional Government of Free Indfia had
got prepared, issued or were about to issue postal
stamps of that character. As appears from the above
question, the dies were prepared under the direction
oi the Japanese.

Counsel for the Prosecution : I Submit

j Would it not be more convenient

to deal with this point in your arguments, and so shall
1 . 1 here is no point, when the document is read
whether the Court accepts it or not.

. Sri Desai: I frankly submit to the Court that

^ IS not a matter of such an importance, but as the
document was brought to my notice I thought it was
my duty to put it before the Court. KTobody should
question books of history, science,literature, and art.

•xf H^agazinein England dealing

^th this subject, edited by a very well-known man
indeed.

X1-* T Sir, it appears from the evidence that

this Indian State had a Civil, and what I may call
an Army Gazette of its own. That is also established
before this Court.

1,* -L. facts, Sir, the first question of law

which I wish to raise is this : Having regard to the
condition in which this Free Government of India
had been formed and was functionmg, it was entitled
to make war and it did make war for the purpose
of- liberating this country. That is the first and the
mam ^ue before the Court. This Court is trying
€ml offences under the Indian Penal Code, and there

are two ways of lookiiig at this question. One is that
wh6h two States ' declprire ' a war-^and I. may assume
for the purpose of thie argument, because I cannot
do more than place evidence before this Court for its
acceptance, that the condition in which the new Indian
State found itself, it was in a position to declare
war — and having declared war, in so far as any acts
in the prosecution of that war are concerned, they are
outside the, pale ,of municipal law. „ I will tell you.
Sir? what I mean because I will .. elaborate ’ this
sufficiently to make myself understood by the Court.
Supposing a German during the prosecution of the
war had shot two or three or ten Britishers in
England and was found in England, the question
is, could he be charged with having committed
murder. I submit , never, for the simple reason
tha-t those acts 'were done during the due prosecu-
tion of the war which, , unfortunately, in the present
world of infirmities the International Law accepts.
That is to say, what International Law accepts is
that two independent countries or two States, as
they are called, r may make war on each other,
and ' those who carry out any action in due
prosecution of the war (apart from war criminals) is
outside the pale of municipal law. Alternatively,
if that is not sufficient for this Court (though I
submit it should be in view of what I am going
to read to you from accepted authorities on Inter-
national Law) under. Section 79. .of the- Indian
Penal Code the acts done in due prosecution of the war
were not offences. Section 79 of the Indian Penal
Code reads thus:

“Nothing is an offence which is done by

any. person who., is justified by law...

And my submission to the Court is that under the
term Taw' is covered international Law', and for
that reason in. so far as that German — continuing
the: example which I was giving— 'Who was arrested
in England was concerned, his defence would be.:

country, my State, was at war with your
State.s Under the orders of my State, aiid in
due prosecution of the war, I did the acts which
under ordinary normal circumstances might be
offences, hut which having regard to the circumstances
are no offences at all/’

Sir, it is unthinkable that any member of any
organized army could be charged with an oftence merely
because he fought one or ten or a million men belonging
to an army of the State with which he is at war. It is
perfectly obvious to anybody that during the prosecu-
tion of the war, the municipal law relating to that
country does not apply, except, I quite agree,
when one soldier steals the pocket-book of an-
other soldier. That I appreciate. But the question which
we have got to bear in mind is the very important
distinction : Was that act done in due prosecution
of the war which one State declared upon ■
another.

Once you get to that state, it is perfectly
obvious that that municipal law must and is bound
to remain in abeyance. It is impossible to arraign
any individual for carrying out as a matter of duty
acts which might otherwise he offences— killing a man
overy day, destroyiag property every day. In fact it is
a very part of the war itself. Therefore the agree-
ment is twofold. The alternatives are either that
any act done in due prosecution of war is outside the
pale^of municipal law — that is why I pointed out to
you in the commencement 'that the charge against *
these young men before you is not as if they had
committed an act of private murder by reason of
;some private quarrel. The documents accepted by
the prosecution clearly bear but that whatever they
did, they did as part of the prosecution of war
^Remember that always, because without that the law
-cannot be appreciated with reference to the facts in issue.

. 23

Bxit there is another way of looking at it,
if you must. That is whether the exception provided
by Section 79 is not equally applicable to the case.
My submission to the Court is that whether you
accept the one or the other makes no difference to
the decision that I am asking for as to the immunity
from those acts being offences at all ; because the
very language of Section 79 is : ‘‘Nothing is an offence
: which is justified by law.’’ The Section assumes that
in private life it might ^ otherwise have been an
offence. If you, gentlemen, in the due prosecution
of war committed murders, could the civil laws as
propounded by tlm other side be put into action
against you, when in all.honour you acted in prosecu-
tion of your duties as members of an organised army
of a State that had declared war ? It stands to
reason — and it must — that any act done by a member
of an organised army fighting under the ordem of
one State against another State between which war
exists, is an act entirely outside municipal law.
But assuming for the purpose of argument, the
Court requires some nearer justification. In the eye
of the Court, in so far as the administration by
this Court is concerned, it is fortunate that I am able
to find the exception in the Indian Penal Co(Je itself,
because these young men are being charged either
under Section 121 or Section 302 of the Indian Penal
Code and I am rel 3 ?ing on Section 79 of the same Code
which says in terms that it is not an offence. Suppos-
ing war was declared between two States and when
peace time returned every individual soldier is called
upon to say whether he killed so and so. I am quite
sure' that as I am addressing men of commonsense,.
you would laugh at the idea. But then I quite
agree that I would have to satisfy you that the new
Indian State that declared war was entitled to do it in
the sense of international law.

And now I will proceed to quote from books of
international law on the question of right to makes

I aiUtireading to you;%oL II of Dick Corbett’s Case!^
of International Law under the beading of “War”, 1937
Edition.

“International war is a contest carried on by an
armed force either between States or between a State
and some community or body whieb is treated as a
State for, the purpose of the conduct of hostilities.
Int^national „ war differs froin other kinds of war
m that it has the effect of setting up a new relation in
law both as between the belligerents themselves andl
as between each of them' and the other States. As
between the belligerents, the State of war although it
departs from normal relations, is nevertheless a State
01 regulated violence in which the conduct of hostilities
IS governed by certain principles and rules which
rest part on custom and part on convention,
and which are sanctioned in the last resort by the
action of international society however uncertain
may be their operation.”

I next call attention to Wheaton’s International
I reading Wheaton’s “International Law”.
1945 edition, Vol. II, page 98:

“War in the absence of any international
authority competent to suppress effectively
international wrongs has always been held
legal by international law.”

4 . 1 , 4 . ^^^®niber that as a definite proposition
that so long as there are two States, if they declare*
war against each ' other, there is no justification
reqmred for it. And once you have a war, any .person
being a rnember of an organised army or one of the
warring ^ates, cannot be called upon individually
o accourft for the acts, which in civil matters or
normal times if done individually in a private
edacity for private motive, be considered to be an
offence.

1

*** War, in the absence of any international
authority co&ipetent to suppress
•'effectively international wrongs, has
always been held legal by international

law Even the creation

of the League of Nations leaves war in
certain cases legal, though there is now
on record the unanimous Assembly
•condemnation of aggressive war. War
is essentially a struggle between States,
^involving the application of force.

Mere armed occupation, as in the
seizure of Strassburg by Louis XIV in
1680-Sl or as in that of Corfu by Italy
in 1923, is not war unless the State
affected declares it so, and
similarly, as reg^.rds pacific blockade.

The States need not necessarily be full y
sovereign : in 1876, Serbia and Mon-
tenegro warred on Turkey, though vassal
States; in 1877, Rumania followed suit.

In 1885, Bulgaria warred on Serbia, then
fuUy sovereign, and in the treaty of
peace of March 3, 1886, though Turkey
as suzerain took part, Bulgaria ap-
peared independently as* a party. So
the South African Republic warred on
the United Kingdom in 1899....''

So, the first- step in the argument is that
the State which declares war is and must > be
in a position to do it. But once it declares war
against any other State, then there can be no
qilCstion of its prop-iety, justice or right. In
th^ particular case before the Court, and notwithstand-
ing their territories which were occupied, I do say
that this war at all events was completely a justified
war. International law in the question of war is hot
static. It is law that has grown from time to time
with the progress of civilization.

Therefore the question really is, once
it comes to 'war, there is ho question of
justification. But hitherto at all events now
in the global war a great many events have
occurred of which intemationaJ conscience takes note.

I will read out to you two passages, one from Mr.
Winston Churchill from the Hansard and another
from Mr. Eden. The position now is that inter-
national law has reached this stage that^ if liberty and
4'emocracy are to . have any meaning ' all over the
world, and not merely just for a part of it, and this
is not politics, it is law — ^any war made for the purpose
of liberating oneself from foreign yoke is completely
justified by modern international law. And it will be
travesty of justice if we were to be told as the result
of any decision arrived at here or otherwise, that the
Indian may go as soldier and fight for the freedom of
England against Germany, for England against Italy, ^
for England against Japan, and yet a stage may not
be reached when a free Indian State may not wish to
free itself from any country, including England itself.
We maintain that this particular war, according to the
decisions, requires no justification. If one State can
•declare war, then the other State can also declare
war and fight, and anything done in «its
due prosecution has no civil consequences of
'any kind. In other words, not one of these
men .now charged before you can be called

upon to account for his actions. We can ^show that
they have done nothing outside the scope of the due '
prosecution of war on a civilized basis. That is an
•emphasis which I always wish to put. It is not
.alleged against these men that there was any question
about the acts with which they are charged. They
were acts carried out in due prosecution of the war,
under what you may call - civilised rules.

'Therefore the question before the Court is a very
narrow one.

To continue what I was reading:

27

“A civil war between different members of
the same society is, what Grotins calls, a
mixed war. It is according to him public
on the side of the established Government
and private on the part of people resisting
its authority. The general usage of na-
tions is as regards such a war as entitling
both the contending parties to ail the
rights of war as against each, other and
even as respects neutral nations. It
seems to be now settled that it is un-
. necessary in order to constitute war that
both parties should ...be acknowledged as
independent nations or sovereign States.'^

There was at one time the old idea that you had
to be an independent State or a sovereign State in
order to be able to declare war. Of course that created
a vicious circle, that a subject race will remain in-
perpetuity a subject race. It can never make a legiti*
mate war for the purpose of liberating itself.
Hence modern international law has now
recognised the right of subject races which are not-
for tl;^ time being or at the moment independent, to-
be so organized, and if they are organised and fight an
organised war through an organised army, the indivi-
dual members of that army are unanswerable before
any municipal court for what was done in due prosecu-
tion of that war.

It seems to be now settled that it is
unnecessary in order to constitute a war that both
parties should be acknowledged as independent nations
or sovereign States. A war may certainly exist between,
a State and its suzerain as in the Boer War. May I
appeal to this Court . and all of you who are familiar
with British history, — what about Charles I and
his death? What about the Magna Charta ? What about
James II? It is all recorded in history. In other words,
you do reach a stage where the organisation, call it rebel

if yon like, call it insnrgent;~insurgents or rebels may
reach a stage of orgaiii?atio3i for the purpose of
liheratiiig themselves when what they do after
‘declaring war is subject to the laws of war.

“A war may certainly exist between a
State and a suzerain as in the Boer War.
Moreover, a war may exist where one
of the belligerents claims sovereign rights ^
as against the other, whether in a federal
or a unitary State..

But it is quite an unnecessary requisite. If
•ever a subject race finds itself in a position where its
organisation is able to declare war, then acts done
by the armies on either side come under this. I put
,a very simple question : What about the acts of those
^ho fought on the side of the British in this War ? They
killed lots of people. Would they be put up before this
^Court under Section 302 ? Most amazing 1 It was a*
properly fought war, no doubt as in other wars one or
the other side lost, and the fact that a war is lost has
no effect on the immunity froni the consequences in acts
done in due prosecution of the war. He says further :

Whether the struggle is a war or not
is to be determined not from the relation
. of the combatants to each other, but
from the mode in which it is carried
on. The Government of the State may
recognize its subjects as belligerents,
in which case other States will normally
but need not follow the same course.

Or ^ other States may recognize
belligerency, in which case the parent
State will ^ but certainly follow suit.

is the crux of the matter. I quite agree
i)hat if ten persons in a village declare war on

29

Britain, they are rebels, and I am not here to
justify it. What I am saying is this : in a striiggie*
between two organizations a stage must be reached
where the organisation of the State and the organisa-
tion of the army are such that it is a war recognised
by civilised nations; and if it hi once recognised,,
then the immunity follows. As the books point out,,
we had the instance of the war between the South and
^the North of America and you have a declaration from
Abraham Lincoln downw;ards that it was a proper
war and there was nothing more to be said about it
as soon as the hostilities ceased. It goes on.
to say :

“Among the tests are the existence of a
de facto political organization of the
insurgents sufficient in character, popula-
tion and resources to constitute it, if
left to itself, a State among nations
capable of dibcharging the duties of a
State; the actual employment of
military forces on each side acting in
accordance with the rules and customs

of war If all these elements

exist, the condition of things is
undoubtedly war; and it may be
war before they are all ripened into
activity. ’’

Therefore what I wish to say is this that the test by'
which you will judge this case is, have we or have-
we not proved the existence of a de facto
political organization of insurgents ? I do
not deny that they were insurgents. Apart
from the other question to which I shall -come*
presently, I will assume against myself that the people-
who declared war and who declared the Provisional
Government of Free India were a set of insur-
gents, a set of rebels — I will assume that against
myself.

President Grant said in his message^
of June 13, 1870: ‘The question of belli-
gerency is one of fact not to be decided
by sympathies for or prejudices against
either party. The relations between the
parent State and the insurgents must
amount, in fact, to war in the sense of
international law/ ’

I call upon you to do the same. It is not a questioife
of prejudice; it is not a question of prestige or what
happens to the Army, to this or the other person.
Please remember that you are here as judges; you are-
not politicians, I agree, and I do not want you to be
such. If you find that there is a de facto political,
organization sufficient in numbers, sufficient in
character and sufficient in resources to constitute
itself capable of declaring and making war with an
organised army, your verdict muvst be in favour of '
these men — no more and no less than the verdict on
your own men for killing others, of which act you are*
justly proud.

That is the-position in law.

Then 1 wish to call attention to another book
on Internarional Law — an accepted book and what is;
more it is bopne out by all the earlier cases in which
war was waged by what you may call insurgents -
against their own sovereign, if you must use that
expression. This book is by Lawrence — ^page 309..
The whole question before the Court under this parti- .
cularhead is whether or not there was a properly
declared war in prosecution of which the accused
before you did the acts which they did. And if they
did that in due prosecution of that war, then there
can be no question of any civil offence, as I think all
of you in your owxi person will easily realise. I am

«0t obliged in my civil life to kiH
■on pam of conviction, but you are,

JLawrence says ;

^‘War may be defined as a co;
on by public force between states
states and communities haviner
to tue contest the rights of states,
to it having the intention of end;
^relations, and substituting for

Ae with rfl the leg.

These were no private acts don
-motive or done for private individua'
^ame to be done by them as members
^rmy, having declared war and the 1
that no sucli_consequenees as the govej
*can arise. Lawrence goes on :

It is true that two States are
at war as soon as one ofi them I
a declaration of war from thp,

anybody except

other. Therefore in due prosecution of it, acts which
might be called offences under civil law are not
offences: the very purpose is to ’ destroy men and
property: the very thing which would otherwise be
unlawful becomes right, becomes patriotic, becomes
a duty.

‘Tn any case it is universally recognised that
war is a contention, i.e., a violent struggle
through the application of armed force......

To be war, the contention must be between

States .On the other hand, to an armed

contention between a suzarain and its vassal
State the character of war ought not to be
denied, for both parties are States, although
the action of the vassal may, from . the
standpoint of constitutional law, be
rebellion.’’ (Para 56.)

I have already said that states are those
which have the right to make war like States.

The first proposition for which I stand before
this Court is this, that the two States sufficient in
number in organisation and in resources may make
war against each other. That is the proposition to
which I stand; and if they, made war against each
other, then there* is complete immunity for what
might otherwise be a private offence. ' That
must necessarily follow from the acceptance of war
as a necessary evil in this infirm world, and no
individual member can be called upon to answer for
the consequences of his acts so long as it ds a properly
declared war. I shall call the Court’s attention to
Mr. Hyde’s book on ‘International Law’, Vol. Ill,
page 1792, para. 648.

‘ ‘So soon as a man is armed by a sovereign
government and takes the soldier’s oath

33

of fidelity, he is a belligerent ; his killings
wounding or other war-like acts are not in-
dividual crimes or offences. No belligerent has
a right to declare that enemies of a certain
class, colour or condition, when properly-
organised as soldiers, wiU not be treated
by him as public enemies.’^

In other words the position is simple. Any
act done by niembers of an armed force against any
opponent, which in ordinary times in a personal case
would be a civil offence, ceases to be an offence
altogether. Otherwise, war and recognition is not
a possibility.

There is a very important decision of the
Federal Court of the United States expressing the
same thing. I may be pardoned for multiplying
authorities, b\it I do so because I feel that instead of
paraphrasing the idea myself, if I do it through the
medium of an accepted authority, I might be able to
carry better conviction. It is VoL 168 United Statea
Beports. page 250. It is the case of Underhill v.
Hernandez. I am reading the judgment of Chief
Justice Fuller. The opinion of the Court is as follows:

‘‘Nor can the principle be confined to
lawful or recognised Governments or to cases,
where redress can manifestly be- had
through public channels. The ^ immunity
of in(hviduals from suits brought in foreign
tribunals for acts done within their own
States in the exercise of Governmental
authority, whether as civil officers or
as military commanders, must necessarily
extend to the agents of governments ruling
by paramount force as a matter of fact.
■V^ere a civil war prevails, that is, where
the people of a country are divided
into two hostile parties, who take up

u: ' ■

arms and oppose one 'another by military
force, generally speaking foreign nations
do not assume to jtidge of the merits of
the quarrel. If the party seeking to dislodge
the existing government succeeds, and
the independence of the government it
has set up is recognised, then the acts
oi such government from the commencement
of its existence are regarded as those of
an independent nation. If the political
revoltfefails of success, still if actual war has
been waged, acts of legitimate warfare
cannot be made the basis of individual
liability.”

Chief Justice Fuller was deciding the case arisinf
out of the war between the North and the South. A
wa,r might exist between what you might call an
existing State and insurgents, and yet the insurgents as
they were called by the Federal Government, may have
such organisation, force and strength that the relation
between the two partie.s is one of the existence of war
Once the war exists, what is the legal position* If the
party seesing to dislodge the existing Government
succeeds, it is now accepted law that a successful re-
bellion IS a Government established by law. The
question is — what is the position in case of an un-
successfol rebellion. The law is, I submit, that if the
st^e IS reached where the rebels Or insurgents are
sufeciently organised and are;sufficiently resourceful to
make war, then it is entitled to be regarded as war, and
Imre will be no individual consequences to persons
who ta.ije part in it. If actual war has been waged
and my learned friend himself was at pains ’to prove
that a replar ^r was being waged, and he put forward

to prove it, then the question.
IS .V\ hat IS the distinction between a private individual
waging war on his own and his waging war as a
member of a force or organized State. That is the real
distinction which makes one immune from the conse-

qnences. If actual war has been waged, then acts of
legitimate warfare cannot be made the basis of indivi-
dual liability.

There is another case belonging to the same
period. It is Ford V. Surget, 97 United States
Reports, page 594, (equal to 24 Law F. D.) :

''The Confederate Government can be
regarded by the Courts in no other light than
as simply the military representative of tl|.a
insurrection against the nhlitary authority of
the United States.

"To the Confederate Army was however con-
ceded, in the interest of humanity and to pre-
vent the cruelties of reprisals and retaliation,
such belhgerentjights as belonged, under the
laws of nations, to the armies of independent
Governments engaged in war against each
other ; that concession placing the soldiers and
officers of the rebel army, as to all matters
directly connected with the mode of prosecut-
ing the war on the footing of those engag-
ed in lawful war and exempting them from
liability for acts of legitimate warfare.’’

The &st proposition is this that in view of the
fact that a state of war existed between the Pro-
visional Government of Azad Hind and the British,
any act done in prosecution of that war has not
the consequences which the Crown claims or might
have claimed in the case of a private individual.

In International Law it is permissibly for those
who are subject to a foreign authority to organize
themselves, and having reached that stage of re-
organisation and having an oreanized army to fight
for liberation, whether it is successful or not, during
the process while the war is being carried on, there

36

is immunity, so far as individual members of the
organized army are concerned for all acts done in due
prosecution of war on a civilized basis (other than
war crimes like those which are the subject of trial
now in different parts of the world ). That being
so, my submission is that the accused men before you
are entitled to be declared innocent in that there is
no civil or criminal responsibility for those acts. In
terms of the language of the books on law, the liability
is on A State under whose direction they fought, and
such liability in international law on the cessation of
hostilities does not exist. Of course if a rebellion is
successful, then it becomes a new Giovemment,
and there is the end of it and there will be no
tribunals, but it is only in a case in which it
is not successful that the question arises and the
answer is given in my clients’ favour by international
law.

The next point to which I wish to advert is
the alternative point which I made under Section 79
of the Indian Penal Code. The issue which arises
apart from the Indian Penal Code is an issue of great
international importance. It has arisen, if I may say
so, in ’ its actual form for the first time though
the authorities directly or indirectly support
the principles on which my contention is based. At
the same time, appearing before this ^Tribunal, it
becomes my duty to justify it on what I may call a
narrower ground to the extent to which it is necessary,
for I do feel that before a Tribunal constituted as this
is, it is equally important that I should put myself
within the narrow sphere of the Indian Statute itself.
Then I submit, as&uming my submissions are correct
and accepted, the hands of the Tribunal are fairly
strengthened. The words which I referred to in
Section 79 of the Indian Penal Code are " justified by
law The question is what is the meaning of the
word ‘ law ’ appearing in Section 79 of the Indian
Penal Code. If I can satisfy this Court that the law

there comprekends and mcludes international law, I
submit my Honourable Friend on the other side would
have hardly any case to present to the Court at all.
If the word 'law’ in Section 79 includes International
Law so far as the immunity which I have described
before is concerned, then I submit the three men at
your bar are entitled to plead that they were so
justified in the actions which in ordinary private
personal life, might have been offences under the Indian
Penal Code. I wish to call your attention i# a certain
number of authorities on the question. The first
authority to which I call your attention is Blackstone’s
Commentaries in Book IV, but it is Volume II in
this binding. It is accepted at all events by British
lawyers that Blackstone’s Commentaries are the
fountain-source of Common Law of England and it is
a matter which I vfish to particularly assert before this
Court. The page that I am reading is 2237 (Vol.II,
edited by W. C. Jones ) . Most of us who are not lawyers
are familiar with Blaekstone’s Commentaries and know
that he is father, to a very large extent, of Common
Law. Blackstone’s Commentaries are relied upon in
British Courts as a very authoritative exposition of
the law on the particular question which" he
has dealt with. ’

'Tn arbitrary states this law, wherever
it contradicts or is not provided for by
the municipal law of the country, is
enforced by” royal power ; but since
in England no royal power can introduce
^ a new law, or suspend the execution
of the old, therefore the law of nations
(wherever any question arises # which is
properly the object of its jurisdiction),
is here adopted in its full extent by
the common law, and is held to be
a part of the law of the land.”

So that, as soon as the Court has ascertained

.38

what is the international law on a particular point
before the Court, it is the bounden duty of the
Court to administer that part of International Law
as a part of the law of the land, and hence it is that
I am submitting to the Court that the word law^
in Section 79 should he given that extensive mean-
ing which the law has hy^ the Common Law of
England.

_ _ Tl* next work on which I rely for the purpose
of the meaning of the word ‘law’, meaning thereby
that ‘nothing is an offence which is justified by law’,
is Oppenheim’s International. Law. The question
is what is law, and it is in support of that that I am
submitting next Oppenheim’s International Law
Vol. I, Fifth Edition, page 36, article 21a:

“In view of this wide divergence of
doctrine it is necessary to inquire into the
actual legal position in the principal
countries in the matter of International Law
and Municipal Law.

(1) As regards Great Britain, the following
points must be noted :

(a) All such rules of customary International
Law as are either universally recognised
or have at any rate received the assent
of this country are per se part of the
law of the land. To that extent there
is still valid in England the Common
Law doctrine, to which Blackstone gave
expression in a striking passage, that
the Law of Nations is part of the law
of the land. It has repeatedly been
acted" upon by Courts. Apart from
isolated obiter dicta it has never been
denied by judges. The unshaken con-
tinuity of its observance suffered | a

reverse as the result' of the dicta of
some judges in The Franconia Case in
1876,- but West Rand Central Gold
Mining Co, v. The King decided in 1905,
must be regarded as a reaj&rniation of
the classical doctrine,’'

So that, ever since the time of Blackstone,
until the last edition of Oppenheim, which belongs to
the year 1937, there has never been any question that
on any issue in which the doctrine of international
law is accepted to be the international iM?*, it becomes
apart of the law of the land, law of the land in Eng-
land, and law of the land here.

Next, I call attention to the work of an
American Jurist Hershey on International Public Law
and Organization, page 14, 1927 Edition :

*Tnternational Law is a part of our law, and
must be ascertamed and admitted by the
Court of Justice of appropriate jurisdiction
as often as questions of rlglit depending
upon it are duly presented for their deter- .
mination. For this purpose, where there
is no treaty and no controlling executive
or legislative act or judicial decision, resort
must he had to the custom and usages of
civilized nations; and, as evidence of these,
to the works of jurists and commentators
who, by years of labour, research, and
experience, have made themselves peouliariy
well-acquainted with the subjects of which
they treat.. Such works are resorted to
by judicial tribunals, not for the specula-
tions of their authors concerning what the
law ought to be, but for trustworthy evidence
of what the law really is.”

So, you wiir see from this quotation
which . has come from Justice Gray in the case

40

wkich is cited — 195 United States Reports, page
113 at page 163, that it has been accepted that-
while administering justice it is your bounden duty to
find out, recognise and apply the principles of inter-
national law where a person at your bar seeks justice
on the ground that the act with which he is claarged
is an act justified by law and that for the purpose of
- ascertaining it you may have resort as it is stated By
the learned Judge himself to “the usages and customs
of civilized nations, and as evidence to this to the work,
of jurists, commentators, who by years of labours
research and experience have made themselves
peculiarly well-acquainted with the subject of which
they treat.’’

Therefore I plead that when the time comes for
your deliberation you will carefully^ of which I have no
doubt, and diligently, of which I am p< 3 rfectiy conscious,,
study and apply your mind to the citations which I
have already given* and which I am about to give.
Because according to the weU-accepted canons, the
commentators who by years of labour, research and
experience^ have made themselves peculiarly well-
acquainted with the subjects of which they treat, and
such worcks are restored to and have to be restored to
by judicial tribunals. I have got; Sirs, the original
judgment from which this quotation is given. The
judgment is reported in 175 United States
Reports in the judgment at page 700. The
case is Paquet Habana, Appeals from tlie
District Coirrts of the United States for
Southern Districts of Florida. The judgment of
Mr. Justice Gray on this question is to be found
at page 700. I do not wish to read it again>
because I have already read it from the textbook in
which it js now accepted. At the same time
I may be pardoned for pressing this point
upon the ’Court because then the issue before
this Court becomes exceedingly narrow. If I am
able to persuade this Court, as I submit I hope to do,.

41

ihat in administeriiig the law you ace bound to
have regard to international law, there will be no diffi-
eulty wliatever in th^ way of the defence which I am
presenting. Then the Statute law has made it in-
cumbent upon you, and in fact has declared that
nothing is an" offence which is justified by law.
If therefore the acts which are said to be offences
are declared not to be offences, and if I am able
to show that the law so declares them, then it
will be your duty to declare -that, notwithstanding
apparent confusion of thought, words like treason
and so on, will have no value.

The law of treason in India is codified.
It is to be found in Chapter VI of the I. P. C,
(Offences against the State) in Sec. 121 and following
Sections. Therefore let me caution the Court against
the general use of words like “treason"’. The
question is whether my clients who have been charged
under Sections 121 and 302 have or have not, in doing
those acts, been justified by law, i. e. the law of
nations, and if they are so justified the law of this
country declares that it is not an offence. In other
words the law of this councry recognises that there
may be acts which if done in private life for
private motive might be an offence but which in
public life or public duty are not an offence. A
Judge is not liable as an abettor of murder because

^ he orders a man to be hung, because he is justified
by law. Similarly and equally, if not more empha-
tically, the member of an armed force having
declared war, if during the state of that war he
has committed acts which in private life might be
offences, the law says nothing shall be an offence.
Therefore I do wish in so far as in m^ lies, to press
this point upon your attention, because the first line of
argument which I submitted to the Court stands, and
I submit to the Court that is the law. In other
words the law is that in the prosecution of war the
acts which take place are beyond municipal law. But

1 ^ ' ' ■

42

assuming for the purpose of argument I have to take
my stand on a narrower ground. Then the la%v of this
country, the Indian Statute Law itself enjoins upon
you that if I can show justification by means of inter-
national law for those acts, then my clients are
entitled to a verdict in their favour. X say this to you
in the language of one of your greatast poets that if in
so far as God grants me the tongue of persuasion
and you the ears of hearing, I have not the
least doubt that when you have considered the
cases before you, you will have no difficulty or
hesitation to decide in my favour on that narrow
ground.

The next point to which I wish to call attention
is Moore’s International Law and Digest, page 2, Vol.
I, and this is how it is stated :

It is thus apparent that from the
beginning the scene in question denoted
something more than the positive legislation of
independent States and the term international
law which has in recent times so generally ,
superseded the earlier titles served to empha-
size his fact. It denotes a body of obligations
which is in a sense independent of and superior
to such legislation. The Government of the
United States has on various occasions
announced the principle that international
law as a system is binding upon nations, not
merely as somethingo which they may be
tacitly assumed to agree but also as a funda-
mental condition for their admission to the
full and equal participation in the inter-
^ coui^se of civilised nations. ’’

I therefore cannot more emphatically assert than the
ground on which I appear bef6re the Court and I have
no doubt that it will rise superior (in the language of
one^ of the cases that I read) to all question of
prejudice and come to the right conclusion in con-

sidering Section 79^ and the immunity granted
by it.

Just one more passage to which I wish to call
attention. It is the judgment of the Privy Council on the
this question. The last under these heads is a judgment
of their Lordships of the Privy Council, reported in a
recent, number, 1939 appeal cases, page 168. There a
question of international law arose. The name of the
case is Chang Chi Ohu. It was a case of murder commit-
ted on a Chinese ship and that is how the question
arose of the liability of the prisoner to be tried. And
the question arose to what extent in international law
it was necessary to consider whether the prisoner was
liable. The contention shortly stated was that the
Chinese ship was so much floating Chinese territory.
That was the claim made under the international law
Their Lordships of the Privy Council held that under
international law it is probably not correct to say
that a floating ship of foreign power is so much, what
you may call, island foreign territory. But they
have ruled by reason of the respect accorded
to conimity of nations, that anything that occurs
on a foreign ship is not within the authority
or jurisdiction of municipal law. In this
particular case what they held was that in as much as
the ship itself accepted the authority of the power
which was exercising authority in those waters, they
held it became an excej)tion. But in considering the
applicability of international law to the question
whether or nqt the Court had jurisdiction to try this
particular Chinaman, the question arose to what extent
international law has to be considered and the
judgment of Their Lordships delivered by
Lord Aitkins is very important from this point of view.
I would not enter into the question of details which
arose in that case though by themselves they are
interesting enough. But I may say this that the
observations which I propose to read are necessary and
essential because the whole defence to the charge of

44

miirder, and the want of jurisdiction of -the Court, !

were based on the ground that under international \

law the Court had no jurisdiction and for that purpose j

the Court went into the question of what was the !

appropriate intef national law on the question. Their j

Lordships said with reference to the necessity of the I

application, or rather with reference to the obligation |

to ascertain and apply international law ourselves was
a part of the law. That is how that part of the case is
stated.

Page 167 : “Their Lordships entertain no
^ doubt that the law is the correct conclusion,
namely that a ship is nob so much floating
part of a foreign' territory, but that immunity .
is granted for whatever happens in that ship
in so far as jurisdiction is concerned. It more
accurately and logically represents the
agreement of nations which constitute interna
tional law, and alone is consistent with the
paramount necessity expressed lin general
terms for each nation to protect itself from
internal disorder by trying and punishing
offenders within its boundaries.”

It must always be^ remembered that in so far as,
at any rate, the courts of this country are concerned,
international law has validity in so far as its principles
are accepted and adopted by domestic law. There is
no external power that imposes its rules upon our code
oTsubstantive law or procedure. The Courts achnow-
iedge the existence of a body of rules which nations
accept among themselves. On any judical issue they
^ek to ascertain what the relevent rule is, and having
found It, they will treat it as incorporated into

•rt, inconsistent

■mth the rules enacted by any Statute or finally
declared by their- tribunals. What then are the
Hnmunities of public ships of other nations accepted
by our courts and on what principle ? I say
that in this particular case not only there is no Statute

45

to the contrary, but in fact the Statute imposes that
obligation, coming back to the action of Section 79,
viz,, nothing is an offence which is justified by law:
Therefore what you have got to do, Sirs, is to ascer-
tain the relevant body of international law^and having
done so, apply it to what is described as domestic law.
Therefore there can be no reasonable doubt that in
the construction and application of Section 79 the
submission which I have already made on the immu-
nity of individual members of an armed force fighting
in a war properly declared, that immunity is a part
of international law and therefore is a part of national
law. And I submit that your own experience w^hen-
ever emergencies of war have arisen should bear
ample testimony to that position. Each time a soldier
fights under the orders of a state in a war properly
declared, if he were to cojisider what would be his
liabilities, I am afraid the efficiency of war would be
a very difficult process indeed. It is an assumed part
of the law of nations that once you become a member
of a fighting force of a properly qualified State entitled
to make a war, there is an end of all individual
liability for the acts which if they were private acts
for a private purpose might be an offence within the
law. Though according to my submission the first
is an essentially correct ground, in any case the justi-
fication by law is a sure ground on which I stand
before this Court. Hence I submit that nothing is
an offence which is justified by law, and I therefore
say that the acts with which the accused are charged
before the Court are justified by law, that is to say
by the international law, and therefore, there can be
no question of a personal or individual liability.

This question has been considered in a different
form or perhaps in different language because I
wish to point out to you, as you have seen in the
earlier- works to which I referred, the law of war is
often described as the law of belligerency. I
wish to point out to the Court, as I, shall presently

do, what is the law of belligerency ; in other words,,
who are entitled to be treated as belligerents in the
light of international, and what I may call,,
immicipal or domestic law.

For that purpose I wish to call attention to the
authorities which clearly show where and how the
law of belligerency rests. I agaixi refer you to
Oppenheim on International Law, 1944 edition, VoL
li : he was professor of international law at Cambridge
and falls within the description which I gave of men
w^ho have by their labour and research and ex-
perience and knowledge, contributed to the formulation
of international law on many questions. The present
question is dealt with on page 200— Article 76 A :

' Recognition of belligerents by other states
is not as a rule binding upon the State.
Notwithstanding such recognition, it is
entitled to treat the insurgents as traitors ;
but the position is controversial with regard
to recognition as a belligerent power granted
to separate armies which comprise subjects
of the enemy who are fightmg to free
their nation from this rule and which are
responsible to an authority recognised as
representing the nation in question,”

That rea lly epitomises the whole of the issue —
but the position is controversial with regard to the
recognition as a belligerent power granted to separate-
armies which comprise subjects of the enemy who are-
fighting to free their nation from this role and which
are res;^nsible to an authority recognised as^
representing the nation in question . ”

To translate it according to law, the accused
before you were members of an army responsible to
the Provirional Government of Free India, fighting
to liberate themselves from the rule of the army of

those who were fighting against them, and I submit
that is precisely the ease before us. The author - goes
on and gives instances of cases of that kind, and I
want to draw your particular attention to those histo-
rical instances which fortunately have occurred before,
so that I stand before you on much more solid’
ground than if this were perhaps actually the first
instance:

“Thus, in the year 1918, during the world war.
Great Britain, France, Italy and the United
States of America recognised Czecho- Slovaks
as co-belligerents. Similar recognition was
granted in the year 1917 to the Polish
National Army, com;^osed to ' a
substantial degree of the subjects of the
enemy powers. It has been maintained that
a.s in the case of insurgents in a civil war —

(quotaticns of which I have already given)

the enemy is entitled to disregard such
recognition and treat the members of the
insurgent army when they fall into his hands,

in accordance *with the provisions of the
criminal law. The better opinion is probably
that when such recognition is granted by
an adversary to large bodies of men
effectively organised on foreign soil in
anticipation of independent nationhood,
point is reached at which ■ the belligerent’
confronted with disaffection and
desertion of a considerable number of his
subjects engaged in hostilities against him,
can no longer, without exposing himself
to justifiable retaliation, aasert the
provisions of his own crimina law as the
only legally relevant element in the
situation.”

I want to draw your attention -pointedly to
the conations which are here laid down and which,

48

n amply fulfilled,
that is the better
t^e reached a stage
ration given by
merely men were
mu- u V ® regularly

inis nas .been amply proved by the
to them for that. They have

was a regular army, a

army oa foreign soil it is ^ true

qualification in my favour, that
army was
s, even a
women
and
Gov-
countryi—

none the less the

you may at your peril call

0 * the country against such
. , ^ r” foreign

independent hatiophodd.
■and that IS why I rea;d the Broclamation
dread It with a view to show to you
, —a which on foreign soil an inde-
government was formed was with the object
ir country : It was undoubtedly
. , Independent statehood; and of
independent state had been established

1 prosecution of force, as I said.

would not have'; been there, to try
it yas., done in antici-

noint , does not detract

point, that a stage.., is reached in which a

d with the disaffection and deser

a considerable number of his subjects engaged

against him, can, no longer assert the

own criminal law as the only leffallv
4 -u 1 „ r““ situation. In other word«

-the legally relevant element in this’ sitna^i i. S

Opinion, and I do say
ar in advance of
Oppenheim. In this
effectively organised,
organised army. T.'

Prosecution — thanks 1
amply proved that there
properly organised ar:
but with this added

Indians residing in places where the t
““«^^ering not a few hundreds,
fnd two million men and'

and children, through 2,30,000 adult men

allegiance to that Provisional
ernment, for the purpose of liberating their
vvhiey unfortunately failed, but
condition required that yc; '

to aid the criminal law of

an organisation— effectively organised on
•soil in anticipation of ‘ '

It is true- ’
to this court — I ^
that the object with
pendent

of liberation of thei
in anticipation of
-course if the
by the successful
this tribunal
them. It was because
Ration, which failed,
from the point, that .
belligerent confronted
tion of
in hostilities
provisions of his
relevant element

we, meaning the tyro armies, had reached a stage
where, having reached a stage of war — there can be
no question at all that under Section ,79 we
are entitled to the justification which the laws of war
give to belligerent armies. And that no acts done
during the course of the prosecution of the war are
matters of what you may call domestic law, pure
and simple ; which would be as if any one of these
three accused went and did any of these acts
out of private motive. Therefore* it is essential to
remember that in aU these cases the substance of the
law is this : two independent states can always make
war and the member#of their combatant forces are
unanswerable for their acts. Only the question arises,
or the intermediate stage arises, whether without
having reached the stage of independent statehood
(to take the words of Oppenheimj you have attuned
a stage, and whether having founded a state
for the purpose of liberating your own country,
you are so organised, both the state and the army,
that it assumes the proportions of a state and as a
result of the war — as much a war between two
independent states. I ain pleading befdre you that we
have proved before this court, and the documents which
otherwise we would not have had the benefit of and
have generously been produced by the prosecution
all of them distinctly arid clearly showed that
we had reached that stage and this court would not
only he justified, but, I submit, bound in law , and in
conscience to regard the accus^ as. belonging to
that organisation, and as member of such' a belligerent
army they 'We entitled to all the privileges of the
laws of war/ Iri other words, immunity for per-
sonal acts carcded out in due prosecution of fehe
war, as you yourself ^iri your, own person would
claim.* ^

. , The next hook to which 1 would call attention
is the British Year Book of International Law, 1937,

'Vcf ,^'5.!.

cill ^elllgererit rfec0gnltion is ixot .>’*
so miich recognition, even temporary and
provisionai, of a new government, as the
recognition of the existence of a war/'

I may explain what is meant here, because
the recognition comes as a stage when it has not
yet succeeded in establishing its own government. Of
course, if for instance perchance this very army had suc-
ceeded in its aim, as the maxim of international law is,
the successful revolution is the government estab-
lished by law. But earlier than that there is the
stage at which it is in a state of Vaf and that is all that
is necessary for the purposes of my case. If
I can establish that they were making war, which is
regarded as a stage of belligerency by international
law, they are entitled to the same privileges and
immunities as would be accorded to the armies of
two independent nations. It continues:

^‘The existence of war is purely a question of
fact; but if we recognise the fact that a war is
being carried on, then the recognition of the
insurgent ^ government follow^ as a necessary
consequence. Wars can only be carried on by
governments, and there must be at least two
parties to every war. , Much of the confusion
which obscures the current discussion of the
Spanish problem arises from the failure to
observe this correct logical consequence. The
true doctrine is that recognition of the insur-
gent government is the necessary and logical
consequence of recognising the fact of war.”

Therefore I submit that once you recognise,
as I submit this court is bound to do on the evidence
before it, that there was a regular properly declare
and properly prosecuted war, then I submit there
can be no question that the apfs of these men, ^ done
in due prosecution of that war, are completely justified
by international ' law and thhrbfore by law.

I

The instances are given in the Year Book of
International Law* This is what it says :

^‘Lest this should seem to be merely doctri-
naire, that is the kind of criticism with which
we people are sometimes apt to run away, —
and theoretical opinion, I shall try to fortify
my doctrine by authority. In 1828 Don
Miguel, the Pretender to the throne of
Portugal was carrying on war by sea and land
against his niece and nominal fiancee the
child-Queen Donna Maria, who was recog-
nised by Great Britain and other powers as
the legitimate sovereign of Portugal. At no
time during the struggle was Don Miguel ever
recognised by Great Britain under any form
dejureoT de facto. In 1828 he proclaimed
naval blockades of Oporto and of the Azores,
These blockades were notified to the British
Government which published the notices in
the London Gazette and communicated them
to the committee of Lloyd’s. The King’s
Advocate Sir Herbert Jenner advised the
British Government that the blockades, if
effectively maintained, might be recognised
as valid, although no form of recognition had
at any time been conceded to Don Miguel.”

In other words the distinction that is sought to
be made is that you may recognise the state of
belligerency without necessarily recognising the
State.

Refusal to recognise the blockade, so Jenner
advised, woulld be a departure from tfie neutrality
which this country had professed in the civil war.
Twenty ye&s later the Palmerston Government,
following the advice of Sir John Dodson-fand I hope
the Judge Advocate will advise you accordingly — ^then
the Queen’s' Advocate decided to recognise the

blockade of Trieste by the Italian insurgents during
the Kevolution of 1848, although iheife h^ been no
other act of recognition of the insurgent government.'

The point I am trying to emphasize is this
that you need not necessarily recognise your opponent
as a government, and yet during the course of the
war, once you recognise that it was a proper state of
belligerency, then the immunities and privileges which
I described before foUow, because the men, and in
modem times the women, who are fighting for the
insurgent government are recognised for the purpose
of these immunities. It goes on :

^‘Upon the point which we are now discussing Dodson’s
opinion is very clear. ‘It is sufficient ’ he says ‘ to
justify a blockade if duly maintained that a de facto
war is carried on by Sardinia and Venice on one side
and Austria on the other

Even more clear is the opinion of a later Queen’s
Advocate Sir John Harding when advising the
Government in 1860 upon the question raised by
Garibaldi’s rebellion. This is perhaps nearer in its
applieation. This is the quotation from the opinion
of Harding : ' ^

‘Tf Her Majesty’s Government considers that
a civil war actually exists between the dicta-
torial Government of Southern Italy and that
of His Majesty the King of the two Sicilies in
which Great Britain is to be strictly neutral
and that the dictatorial government has in
fact attained (howsoever) an independent and
sovereign existence and governs de facto a
portion of the Neapolitan dominions, then Her
Majesty’s Government may without violating
or disregarding the law of Nations and with-
out encouraging piracy, so far recognise the
acts of this de facto government as to adroit

the validity of auieffiective blockade^ main-
tained by k competent naval ( force acting.
?nhder its orders, for to acquiesce in the cap-
ture and coiidemna- tion by it of articles of
contraband of war designed for the use of the
. ,;Kmg of the two Sicilies/"

The. belligerency which existed was between
what you might call the King of Italy and the insurgents, .
and the advice of Sir John Harding was that if there
was a de facto war between the two, then the rights
of .the belligerents should be accepted and acknow^
ledged: In other words, supposing they took , as prijse
of war ships belonging to what you might call the
constituted .King of Italy, it would still be a perfectly
good prize. , ,

In the course of the same opinion, Harding^
pointed out that Garibaldi and his officers could not*
possibly be regarded as pirates, since they were carry-
i.og on war in a regular manner and had been dealt
with on equal terms by British naval officers. The
three opinions which I have just cited are those of
British law officers ranging over the period from 1828
to 1860.

Without further multiplying citations, I
will therefore summarise their effect . by . saying
that what we recognise in these cases, is the existence
of war. The recognition of the insurgent , government
is merely incidental or consequential since a war
implies the existbnoe of some independent authority
which carries oh ihe war. .v .

'T^he'
attentip%ietto p
from

Boreighiip^ir^ary^
Hansafd^jdifolijs.t;

, wen

debates of ' the 14th April' ^i93i’^^p‘age 1133. This is
what I have here :

‘^Ths Leader of the Opposition spoke earlier
today as though the Government had given something
np in this case. Of oonrse we have not given anything
up, because you can never grant belligerent rights to
one side only ; they must be granted to both sides, if
they are granted at all.’’

Tins issue arose on the question of the Spanish

war.

** The Honourable Gentleman remarked that be
thought that never in history had there been any ques-
tion of granting belligerent rights early in a dispute.
As a matter of fact, in the American Civil War we did
grant belligerent rights within six weeks of the out-
break of the Civil War

^‘Mr. Noel Baker said : The Government them-
selves declared a blockade, which, as all international ,
lawyers will agree, compels them to grant belligerent '
rights to both sides.”

'^r. Eden : We ourselves made, in point of fact/ j
a declaration of neutrality but of which arose the
grantifig of belligerent rights ' to both sides. That is
what we did in the American Civil War. Of course
that does not stand alone. It is not the only example.
The Honourable gentleman is probably familiar, I
think, as I know something of his associations in this ; ’
respect,' with the Greek rebellion against Turkey in*'
1821-25. “ At that time also — remember that in each
case these were insurgents agaijost thdr , p'arehf State
fighting for their liberation, and it was during the
course of that struggle that the rights of belligerents
were granted by Britain. At that time also, belligerent
right^^^^were' granted, Government

voiced this opinion ihraw

tion of the House ; the character of belligerency was
not so much a principle as a fact that a certain degree
of force and consistency acquired by any mass of popu-
lation engaged in war entitled that population to be
treated as a belligerent and even if this title were ques-
tionable, rendered in the interest well-understood of
all civilised nations so to treat them.”

The position of British politicians and British
law on the question of the recognition of belligerency
even as between what I might call the parent state
and the rebel states has always been recognition of
belligerency.

At that time , /JJanning was Foreign Secretary
of this country and Pr^%sor Philips in his History of
Europe deals with this very interesting chapter
of modern Greek independence. He says :

“Curiously enough as in the affairs of Spain^
so now his (Canning’s) attitude was frankly
based upon the interests of Eagland. The interests of

Eiigiand in his opinion demanded peace... The

recognition of the belligerent character of the Greeks
was necessitated by the impossibility of treating as
pirates a population of a million souls and of
bringing within the bounds of civilised war a
contest which had been marked at the out-set on
both sides, by disgusting barbaritie-^.

“Those were both cases in which belligerent
rights were granted. A third and perhaps, in a
way, even more remarkable case, was , the revolt
of the Spanish Ameripan Colonies against the Spanish
Government,, from which resulted the establishment
ot the South American independent republics as we
know them today.” «

So that you have instances on both sides of the
line. You have instances where those who rebelled.

against a State for their own independence ultimatel3r
succeeded, but while they were in a state of war
both were recognized as belligerents. ‘ Those others-
in which they did , not succeed but nonetheless
during the interval of the struggle, they were botk
recognized as belligerents.

“A third, and perhaps, in a way, event
more remarkable case was the revolt of the
Spanish American Colonies against the*‘
Spanish Government, from which resulted
the establishment of the South American,
independent Republics as we know them
today. In that dispute we recognized the
rights of the belligerent colonies.

People were actually revolting against their own
Government for oheir own freedom, and one need not
be apologetic in this period of world history to say
that the subject race may free itself.

*‘In that dispute we recognized the rights
of the belligerent colonies long before we
recognised them in any otehr way, and, when.

I heard the Right Hon. Gentlemen below the
Gangway speaking earlier’ this afternoon, I
bethought me that he might well have
remembered the enthusiasm shown by the
Liberal Party of that day for those new
Sta|;es across the Atlantic to whom we
accorded belligerent rights, though they were
rebels against their own mother country.”

Sir, I say that I could not quote a stronger authority
for your adoption than the action of the British
Governme.nt as stated authoritatively by the Foreign
Secretary of Britain and I would like to read it again.
11 order that I may not miss the point :

“I bethought me that he might well have
remembered the enthu 4 asm shown by the

Liberal Party of that day for' those new
States across the Atlantic to whom we
accorded belligerent rights, though they were
. rebels against their own mother country,”

And I say that the same point arises - for you.
It is true that those who fought were rebels from the
point of view of constitutional law as against their
own King — and later on I will come to the question
of allegiance — it will be my duty to analyze before
you what that means, though it is irrelevant to
the issue as I shall point out. The very fact
that those colonies were fighting against their
mather country as it is called, shows that at
that time there was what you may call ‘legal
allegiance’, but legal allegianee cannot be a matter
of perpetuity because if it becomes a matter of
perpetuity no subject race will ever attain freedom.
For the moment, the point with which we are
concerned is merely this : that while in a state of
belligerency Britain recognized the rebels as proper
belligerents, those who were fighting against their
mother country, and if that belligerency is recog- '
nized, I venture , to submit it will be far too much
to ask this Court to refuse it to this Provisional
Government of Free India and the Armies fighting
under them. Mr. Eden goes on — because he wanted
to make the point that the State will be recog-
nized not only when it comes into existence, but while
.still the struggle goes on. Now I read ;

“What I wish to deduce from these three
examples is that the natural thing, ”

mark the words—

when a struggle has reached the

large dimensions of the present war in Spain,
would have been to recognise its belligerent
character, and for States whose maritime -

interests are involved, as^ TO are, to grant
belligerent rights to both sides.”

In other words, as he put it before, it is
essentially a matter of fact. If we 6nd that the
struggle, — call it rebeUioh, call it insurgence, call it
what you like, — ^has reached * such proportions that
you cannot control it by normal means, then you
must recognize that it is a state of war, and once
you recognize that it is a state of war, those who
fight in |)ttrsuance of the declaration of war and in
prosecution of it are entitled io all the rights of
belligerency. Then he goes on :

^‘That would have been the natural thing
to do. Recognition of belligerency is, of
course, quite distinct from recognising anyone
to whom you gite belligerent rights as being
the legitimate Government of the country,”

And that is what I want to impress upon you,
that if it is asserted on the other side that it is
required for the purpose of immunity from all acts
done in due prosecution of the war that the Pro-
visional Government should have, been recognized
by Btitain, it is a completely futile argument. In
fact, the very hypothesis cannot exist. The hypo-
thesis is this : The rebels as I have called them —
I do- not mind it — are fighting . for their freedom
against another country. If they succeed, the Gov-
ernment will be recognized, but, in the meantime,
during the course of fighting, the Government wont
be recognized, but what is recognized is belligerency,
I shaU presently point out what it involves,
— ^immunity from all acts done in due prosecution of
the war.

‘^Recognition of belligerency is, of course,
quite distinct from recognising anyone to

whom you give beiligereut rights as being
the legitimate Goveniment of the country*”

It is a fact that the Provisional Government
was not then and did not become the actual Govern-
ment of India, but that does not matter at all.
What are the rights and privileges during the course
of the struggle, and if I am right in my submission
to the Court, there can be no doubt that during
the course of struggle there was only one duty
owed by men like the accused before you, and that
is to prosecute that war under the orders of the
Provisional Government,— and anything that they did
by way of prosecuting that war gives them complete
immunity.

‘‘ It has nothing to do with it. It is a con-
ception simply concerned with granting
belligerent rights which are of convenience to
the donor as much as they am to the re-
cipients. I will not go into the reasons, but
for a variety of reasons in the present dispute
we are not granting belligerent rights.”

So that you have here • recognition of an
adoption of the principle supported by precedents as
stated by ^the Foreign Secretary of that day.

Then there is a quotation from Mr. ChurchiU^s
speech during the course of the same discussion to
which I wish to call your attention. That is on the
14th of April 1937, page 1068 :

‘^When I hear my Right Hon. friend
opposite speak of rebels, I must remind him
that, sitting there as he does in the seat of
the Whigs,* he is departing from Whig
principles. The sacred right of rebellion was
one of their first doctrines. In regard to '

liberal statesmen, there the Bight Hon.
Oentleman sits, the successor to Mr.Gla dstone,
striving to uphold the great principles for
which his party stands* But what
was Mr. Gladstone’s record ? He was a
strong supporter of rebels. He was |t strong
supporter of the rebels in the war of Ameri-
can secession. There, we had a civil war in
which the rebels were not only rebels but
slave owners. Mr. Gladstone went about
the country, and in a famous speech either
at Hew castle or Hull, proclaimed that the
Confederate States the Southern States)
had not only founded an army, but that they
had founded a navy, they had founded a
Government, and more than that, they had
founded a nation. (An Hon. Member:

‘‘ He was a Tory then . ”) He was not a Tory
then. Therefore, before one takes the view
that rebels are like mad dogs to be put
down and shot at sight, we should remem-
ber these things. ”

In other words, in that debate the Government
of the day in England recognized that while a rebel-
lion may or may not be • successful, while it has
attained a stage of war, you must recognize and give
immunity to those people who fight on either side, for
what justification is there on the part of one set of
them to fight and claim immunity as against the other
side? If the I. H. A. shot, I dare say the British Indian
Army equally shot from the other side. The justification
is equal in both cases in so far as this particular
struggle is concerned. Mr. Churchill goes on :

“If we search the history of the nineteenth
■century we shall find many cases where
British Government have actually ^espoused
the cause of rebels. The Hon. ' Member
(Mr. Maxton), the leader of '' the

61

‘ Clydeside party, with his customary candour
9,nd frankness, made no bones about
supporting rebels. He declared that the
question was whether or not they were
rebelling for the thing you wanted.”"

I am quite certain that we have proved to the
hilt that they were rebelling for a thing they w^anted
which is fully approved of by any civilised humea
being. There cannot be two dijfferent laws for two
different sets of people. ‘‘Every one will support
rebels who are fighting for the things of which they
approve and they will criticise the Government w^hich
is for the things which they dislike. 'Therefore do ant
let us have too much of an attempt to make out thar
the Government in Spain have all the right on their
side and fche rebels none.”

The Court will appreciate that I am pleading
for a very limited right. I am not here before this
Court on the question of the recognition or non-recog-
nition of the unfortunate failure of the Provisional
Government to obtain the independence of India.
That is not the issue. There is a very narrow issue.
It is this. While they were fighting and struggling,
were they or were they not entitled to the rights of
belligerents.

Mr. Churchill goes on : “Therefore do not let
us have too much of an attempt to make out that the
Government in Spain have all the right on their side
and the rebels none. It is one of the most evenly
balaifced struggles and one of the most unpleasant and
certainly it is the least cause for us to espouse. Tf we
were to take the course which is recommended by the
Right Honourable gentleman and to break the blockade,
if we throw the might of the British Navy into the
scale, could he guarantee or could he be sure " that we
might not provoke that very alignment and crystalisa-
tion in Europe along those unnatural and idiotic — ^per»

haps I had better say ideological — ^lines which it is our
whole message and mission 'to rupture, or least to
avoid.” So that Sir, even up to the very last war,
up to the year 1937, just on the eve of the last war, it
is perfectly obvious that^ a distinction has been
maintained, a distinction which I cannot too often
insist upon between a state of belligerency which may
be recognised and the rights accorded" without the
ultimate success of those who fought for the cause
for \Yhich they could fight. They may fail but none
the less in the interval they are entitled to the rights,
of beliiger- ency.

Then, Sirs, there is a further point and I tell
the Court that it is a question of fact. This Court
should find that this Provisional Government had ceded
to it the territories which I have described. But while
insisting on that finding of fact, because we submit
that it was a fact, I wish to point out to you that
from the point of view of belligerency it is quite un-
necessary that the particular Government for the time
being need have any territory in its possession at all,
and for that purpose, I wish to give you illustrations
in history. Take Belgium in the last war and all the
emigre Governments residing in London during the last
but on€f war and the last war. What were those*
emigre Governments ? Not an inch of territory which
they could call their own at that time and yet who
ventures to say before this Court that a member of the-
Dutch Army or for that matter the Polish or
^the French or the Yugoslavian Army may not fight
to liberate its own country and not have the right to
claim, even if they failed, all the rights and immunities
as far as their soldiers are concerned of belligerency. I
think, Sirs, the last war has illustrated more than any
other that some of these old principles may be overdone
and that it is quite unnecessary in order that you may
have a state of war, that country that is fighting a war
on one side need not necessarily at that" time
have, what I may call in the comman English

aa

•parlance, a local habitation thoiigh it may have a

name. Many of these emigre Governments were
deprived of their territory and the fact that they
'we^e deprived of their territory temporarily, or
the fact thafthe Indians were deprived of their terri-
tories for 150 j^ears, makes not the slightest difference
to the point that we are submitting to the Court.
What we submit to the Court is this. They were ail
liberating armies, trying to liberate their country and
therefore were entitled to the immunities of those who
'were fighting. The next question before you, Sirs, is
this. There is no such thing as the law of limitations
in dealing with nations so that if either the Dutch or
'the French or anybody else was trying to fight for the
liberation of their country while having lost their
territory to the enemy, can it ever be argued in a
British Court that those who were fighting to liberate
their country were not fighting a struggle where they
were entitled to the rights of belligerents. Suppos-
ing any one of them failed, is it to be said in a British
Court that they were not fighting a struggle to which
jail the laws of immunities and privileges of a fighting
.army exist ? I therefore urge upon you not to take the
instance that you have before you as any different
because we happen to be Indians. Remember that.
*They were trying to liberate their country. I am not
here to espouse the cause of the Provisional Govern-
ment. lampleading for men who fought under the
.orders" of their Government for the liberation of their
own country. If therefore they were entitled to fight
I“or their own country for the purpose of liberating
;their country, I am entitled to tell this Court that
J}hey are entitled to the privileges of belligerency.
One more instance on which there was a certain
.amount of struggle in proving the facts is the case of
the Maquis in France. Remember the facts. At
the time when the Maquis were fighting, the de facto
and the de jure Government in France was Marshal
Retain’ s Government and the latter were allied
with Germany, The Maquis were fighting in order

44

/

f A

to release France from their own French Government

which wiis allied .with;: ' Gcriiiany,. ■ and ■ what did
Eisenhower say? I am going to read that to
yon because it is a very short document and it; is
.very imports nt. . . At that, time it ■ was apprehended
that the Maquis might be dealt .with unjustly by " the'
then French Government, because it the de "jure
Government of the time and would shoot as rebels
very much the same, aS' the Advocate. General will later
on argue to say about the persons vrho took part in the
Indian Rational Armj^ But you have the pronounce-
ment (M no less a person as Field Marshal Eisenhower
that tnat shall not be. In other words, if persons
with a view to liberate their Government, fight
against their own Government, they are entitled to the
rights of belligerents. That was the reason w^hy I was
very anxious that I should be able to prove that
statement. Sirs, this is the statement which has been
proved and I may incidentally agree to what my learned
iriend insisted upon that I should put in also the
Ge:^an view of the matter. If he prefers that it is his
look^ out. I do not. I prefer the American and
the British view.

•‘ There is conclusive evidence that the German
forces in France are

- *1, ol^liged to my honourable friend for say-

mg that he does not doubt the authenticity of the
source, meaning that it came from General Eisenhower

Of course he insisted that 1 should put in the second

passage and I leave you to judge which of the two you
should prefer, with the submission that you should
prefer Eisenhower to General Keitel.)

“now recruiting members of the French
resistance group as Franc Tireurs and today
an announcement issued from SHAEF in the
name of General Eisenhower makes these
tour points : •

1 That the French forces of the interior
constitute a combatant force commanded
by General Koeniggand forming an
integral part of the Allied Expedition-
ary Forces.

2. That the French Forces of the interior in the

Maquis bear arms openly against the
enemy and are instructed to observe the
rules of war. They are provided with a
distinctive emblem and regarded by
General Eisenhower as an Army under
his Command.

3. Reprisals against resistance groups violate

the rules of war by which Germany
is bound.”

This is what I ask you to do: that anything
done against the members of the Indian National
Army fighting for their freedom according to
the rules of war, — submit that any action taken
against them is a breach of international law.

4. ‘^Every effort will be made to tr ace the authors

of any atrocities against members of the
forces under General Eisenhower’s Com-
mand. Steps to this end are already
being taken.”

Then the rest reads :

General Eisenhower in a declaration broad-
' , cast to the B. B. O. tried to legalise the French
partisans as a fighting force ”

The question that arose was somewhat delicate
from a constitutional point of view, because for the
time being the then French Government was still
under the thumb of Germany. The people of

fighting against their
WWnment_w}nch was pro-Germany were imdoubtedly
guilty of fighting against their own Government, but
tlie ground of immunity accorded was that they were
fighting alongside the allies for the purpose of freeiiw
1®, ^he distinction, I ask, between th^
who fought on the side of, even if we say Japan,
for the purpose of freeing their own coimtry ? With
very gr^t respect it is difficult to undferstand any
distinction. In other words, if the Maquis w^
Sw *f privileges and immunities of a good

?' liberating their own country, I
treatment ^tn you^ can fail to accord a similar

Then, I read on ; —

“ General Eisenhower in a declaration broad-
cast by the B.B.C. tried to legalise the French

p^tisans as a fighting force. From respon-
sible circles in the Wilhelmstrasse the follow-
* statement has been given out :

"This attempt by the Allied High Command

IS unjustified. French partisans revolt
agaimt the legal French Government and
violate the French laws, which enforce capital

punishment for such violatiom//

Gertnan^^rj”’^ solemnly to adopt what the

situation. With what face
CW! aigument be presented to a British

of the French partisans do not
be adviSSf argument that is likely to

'‘The activities of the partisans do not consri-
tute a regular war conduct but a malicious
system of ambush fighting against the occupa-
tion power. Thus the partisans have forfeited
the right to be treated as regular troops.”

I submit that the view put forward by General
Eisenhower is the more correct of the two. But the
other view clearly shows what I have to establish before
you in order to claim immunity, namely that it is a
regular organised army, fighting according to the laws
of war, and not guilty of any personal atrocity beyond
and outside merely %hting a regular war, and it is
fortunate in this case, the first test of its kind, because
the issue is neat. There is not even a charge of any
personal atrocity. My submission to the Court is that
the British, and I mean no empty compliment, civilised
instinct has recognised that if a struggle for freedom is
waged, then if it reaches a stage at which there is an
organised Government and an organised army, it must
be accorded ail the rights, privileges and immunities of
a fighting army, and that is what I plead for.

The question which arises under Section
of the Indian Penal Code is that by all rules of
civilised warfare what you claim for yourself you
must accord to your opponents, even though you may
have succeeded in defeating them. You are entitled
to come to your own conclusion on the merits of the
controversy at issue before you. But the Government
says this

''Thepohcy of the Government of India is,
however, that only these cases will be brought to trial
where there are serious charges, apart from that of
waging war against the Edng . ”

As I said, it is not law and in no manner binds
you, I must frankly confess that much^ because it
must not be said that I was trying to take refuge

behind any executive statements. But the fact
remaim that behind that statement is almost a reluct-
ant emission that waging war is in this ease not
an ottence, or at least seriously treated as an offence,
iiiat IS perfectly obvious, not because waging war
per se is not an c derice, but because in the -circum-
stances 01 tne case, where, with an organised government
and an organised army, a war was carried on, then
waging that kind of War is not an offence. I am not
irir^it-iduals in India collected arms
and began to figt-t the Government of India, wa<^ia<^
war IS not or would not be an offence. But what is
meant is that waging war, meaning the prosecution of
war m the circumstances of the case, namely, of the
Indian National Army under the Provisional Govern-
ment,— thatis not an offence. But it is a matter
wliich i want to be judged entirely on the merits of the
legai and factual submissions which I have made.

- 1.'^!^® I submit, does not

arise, but in as much as I have only one address before
this court I must try and anticipate things and answer
them,— sometimes it is unjust to one’s self, because one

may raise more things than the opponent is likelv to
think of and I may make a present of an argument to
him— but having regard to the rules of this court I
am obhged to resort to that course- it cannot ’be
idped ; otherwise I should have preferred bo have a
any new point- which may be raised
0 ^ ray learned friend on the other side. The
ShTl T^i deal with the issue is this: the cases
^ ^ ^ and the authoritative works
which I have quoted to the Court, clearly show
tJat in judging this ease, no question of allegi-
ance arises. AU insurgents, while they Tre

allegiance, and all the books
hich I have read will be worth nothing if the
question of allegiance had been raised,— because until
you successfully throw it off, the prima facie aUegi-
nee, if 1 may so call it, exists ; and none the less

wMe it is not sncoessMly thrown off, while it is in that
ambulatory stage, the rights of fighting and the rights
<rf war, if it is a properly declared war and a properly
eondncted war (I will not repeat that qualification
again, you will assume it from me that when I talk of
the rights, of war I am talking of a properly declared
war and a properly prosecuted war as to which I have
made my submission) — ^in such a ease ex hypothesi
lie allegiance exists. The rebels want to throw off
the foreign yoke, and the result is that undoubtedly
if the question of allegiance arose or had ever
arisen, no grant of immunity to insurgents fighting
for liberty against the parent State would
bme ever arisen ; but the fact remains that
notwithstanding the fact of allegiance remaining, the
right and freedom to liberate their own country being
recognised at the same time, it is given effect to by
recognising belligerency; that is to say, when an
organised force is fighting under an organised govern-
ment for its own freedom, while they have not compl-
etely succeeded and token allegiance remains, they are
still entitled to fight. That is recognised by the law
of nations. But should such a question ever be
raised by my learned friend — ^which I submit is irrele-
vant— I have important submissions to make. First,
that on the events which took place at Farrer^ Park
on 17th February, there was no allegiance left and
hence it is very important that I try to concentrate
my attention on what occured at that meeting.

The fach, which probably may remain unnoticed,
but which was most important, was that the British
officers and British other ranks were separated from
IiMian officers and Indian ranks. It is an extremely
important fact to remember, in order to be able to
appreciate the events and the occurrences of that day.
They having been separated, the Indian officers and
ranks, numbering an 3 ijhmg between 30,000 to 45,000,
were all asked to assemble at Farrer Park. —
Colonel Hunt made a short statement or speech, saying

that he was handing them over on behalf of the
British Go^' nment to the representative of the Japa-
nese Government, Colonel Fnjiwara. Colonel Fujiwara
then made a speech in Japanese which, as the evidence
now shows, was translated both in English and in
Hindustani ; and the statement of CoL Fnjiwara
amounted to this— using my own language — that those
of the Indian prisoners of war who wanted to join an
army for the purpose of liberation of their own country
were free to do so, and handed them over to Captain
Mohan Singh. Captain Mohan Singh then addressed
them saying that he was prepared to organise the
Indian National Army for the purpose of fighting for
the liberation of India ; and we had the evidence —
uncontradicted — that he was acclaimed by the whole of
the Indian prisoners of war present- I wish even at the
risk of repetition to submit that when an insurgent fights
against the then constituted government to free Ms
own people and his own country from the alien, the
question of allegiance does not arise. I want
in that connection to take the statement of Captain
Arshad — it is a most emphatic statement he made.

** We believed that the only allegiance we owe is
allegiance to our country.’’ I cannot describe
better than dn his words the result of that day’s
proceedings.

That brings me up to a somewhat difficult
subject like the case of any subject people, in
particular India. All of you are aware that every
charge of treason in England is a charge of working
against the King and the country. The last one is the
reported ease of John Amery. In the situation in
which an Indian finds himself, the question is under
what circumstances and to what extent this question
of allegiance can be raised at all, . because once you
divide the King from the country, it becomes a very
difficult issue altogether for any human being to decide,
and hence I would prefer to rest my argument on the

31

©ccuErendes of 17th February. The position of
an Indian in a case of this kind is difficult and I am
going to submit to the Court on first principles what
its true solution is. Where the King and the country
coincide there is no question of an alternative. If you
ight against the King and also fight against the
interest of your own country, the question does not
arise, but the question does arise where there is a fight
for freedom, and I propose to read passages to show
to what extent the world has progressed in the matter
of the recQgHition of human rights. When you are
nominally fighting against the King but really fighting
to liberate the countr}^ then the point is whether the
question of allegiance can arise at all. Unless you sell
your own soul, how can you ever say that wdien you
are fighting to liberate your own country, there is some
other allegiance which prevents you from so doing.
That means that if that happens there is nothing but-
permanent slavery.

Therefore it is that I submit that in the cir-
cumstances of this case a choice was presented by the
force of circumstances to those prisoners of war who
were ‘surrendered by Britain. — I do not say wrongly —
because there are reverses in the forbunes of war. Who
am I to say whether it is rightly or wrongly done 1
At the same time you cannot disregard this most
important fact that for the time being by reason of the-
exigencies of the war Britain found itself unable to give
any protection to her soldiers to fight for bhe country
and that being so , they found themselves in a very
unenviable position. - My learned friend may say : ' you
ought to have remained prisoners of war,’ and he ma}^
argue that they may do anything under the circumst-
ances short of making Avar. I concede that proposition
where allegiance to the King and country coincide, but
where the two do jiot coincide, a different situation
arises altogether. My learned friend may say that
they were fighting on behalf of a puppet Government
or they allowed themselves to be used as stooges of the

Japanese. Even accepting this somewhat unenviable
egression of stooges or otherwise, the question is one
of fact, namely, whether or not it was a regiilax' army
honestly believing that H is fighting for the’ freedom of
its country. question of a bad name that may be
given has really no relevancy to the legal issue but
in as much as a great deal of dirt has been thrown by
expressions of this character- — ^puppet Government and
words to that effect — and the question
of the strength of that army may be raised, it is my
duty to tell the Court how the evidence stands
on record. The evidence that stands on record
is that the No, 1 I. N. A. was formed and
was dissolved in December. I shall forget
that for the purposes of this case, because waging
war which is the subject of the argument, applies to
what you might call I.N.A. No. 2. I have attempted to-
ixrove and I have established that the I. N. A. though
small in numbers, w^as fighting as allies of the Japanese
Arni}^ and there is no ignominy in admitting that or
in doing that, b^, cause the objective at that time of
both the armies was undoubtedly to free India from
Britain. The objective was no more and no less than
that of the allies in fighting to free France or Belgium
or any ocher country, and if ifi that process there was
a unified command or a single strategy, you, Sirs, will
not say with your knowledge of military affairs that
that makes one army the stooge of the other. It is a
phrase with which my learned friend will not be able
to walk away if he uses it, and that is why
1 want to tie his legs, if. I can. If the British and the
American Armies fought under the command of General
Eisenhower, Britain may not be called the stooge of
the Americans, and 1 hope my learned friend will not
descend to tlu^ level of calling the I. N. A. stooges of
the Japanese. The evidence given by Lt. Nag is
^^ery impcrtanp from this point of view. He "was
extremely prolific in the results and he came to prove
at the instance of the Prosecution that there was a
very organised regular army, and that a big war was

. 3 ^

foHgtt. My^ is tliat he was hoisted with

his own petard. * If he proved that a regular war was
fonght, that is precisely my defence. He was qualified
to speak abont it. He was legal adviser of the I. N. A.
and he told this Court in effect — I am quoting his
words— that the two armies fought as Allies. Whether
the alliance was right or wrong is not before this
Court. The only thing that is before this Court is
whether or not this army fonght as an organised army.
My learned friend will not be able to support any
allegation that they fought for any other objective
except the liberation of India. If an allegation of
that kind is made, it is a false allegation, and we have
given a complete' lie to it. The pipsecution witnesses
from beginning zo end admitted that the object of the
I. N. A. was to fight for the liberation of India, and
every one, whether volunteer or non- volunteer, willing
or unwilling, has admitted that they had no other
objective except the liberation of their own country.
That being so, my submission to the Court is that
in so far as any allegation is made t© the contrary it
is only put forward as a point of prejudice, and I had
to meet it with a view to remove the prejudice, be-
cause as I said it is not in human hands to choose your
allies under the circumstances which may be forced upon
you. And whether you fight with the aid of X, Y or
Z for the purpose of liberation of your own country,
the fact that Y was otherwise a bad person has got
nothing to do with the case. But in all human discu-
ssions there is always an argument at a tangent ; many
human minds confuse the issue, and hence it is that I
have attempted to cross-examine, at all events in the
briefest possible way, to make this point clear. The
point that I tried to bring out was that the I.N.A. was,
though small, a very organised army, inspired by the
best of motives, and fought for that purpose, though
unsuccessful for the time being.

There is one other thing which I ought to have
mentioned and I regret I omitted it while I was talking

74

on the jSrst issue. That was with reference to the
Minister sent by Japan to the Government of Azad
Hind. I ought to have stated earlier, because the
points which I have mentioned were proclamation,-
recognition, declaration of war, followed by possession
of territory, and also the Minister of the Nippon
Government accredited to this Government. The last
is not essential, but still in point of fact it was alleged,
and I will state how the facts stand under that head.
The fact is that a Minister was sent in fact. No less
a person than Mr. Sawada of the Foreign Office told
the Court that it was decided to send a Minister to the
Provisional Government of Azad Hind, while he was
the Vice-Foreign Minister and he was competent to
speak about their decision, that a Minister in fact was
sent. As it happened he came without letters of credit
or his credentials, and as if it mattered the whole argu-
ment was to show that a Minister ceases to exist
because he did not bring the papers. Supposing one
of you, Sirs, sent me your agent, and I choose
not to demand from him his letter of authority
and I accept him, it is a most extraordinary
argument that the agent ceases to exist. That
is a sort of logic which my learned friend wishes
to apply to this case. But a good reason was given
founded on diplomatic practice which you should
accept. The evidence says that being a Provisional
Government, in accordance with the dignity of nations,
or comity of natioAs, no credentials are required. In
other words, the important point is whether the man
came^and was recognized by the person for whom he
-was intended. During the evidence, my learned
j&iend got an answer from one of the witnesses
to the effect that the head of the State, Netaji
Subhas Chandra Bose, did not receive him. But
there is further evidence which realy destroys
any other points on this question: Thereafter
(Credentials were asked for, the head of the State
according to his conception required it, and yon
have the evidence that credentials were prepared and

that they were signed by the Japanese Emperor and
were despatched but under the then conditions of war
they did not reach. But because the Japanese Minister
was duly accredited I submit it is a reinforcing
' argument in my favour. When he came, the two-
Grovernments-— meaning tthe Provisional Government
of Azad Hind and the J apanese Government — took a
different view of what you may call diplomatic practice,
but that does not affect the issue. The sending.
Government in the end, when so required, actually sent
letters of credit, and the fact that it reached or did not
reach does not affect the issue; at all events it comple-
tely cured such defect or deficiency as there was in the
procedure. And in point of fact I ask the Court to hold
that there was a duly appointed Minister, which is all
that arises here. The reason why we brought in the-
evidence was among other things that the Provisional
Government of Azad Hind was a properly organ-
ized Government, and accepted, and the accept-
ance does nob require necessarily the sending
of an envoy, or an ambassador, or a Minister,,
or whatever the position or the relation between the
Governments may be.

What is it that the I.N.A. embarked upon
in collaboration with the Japanese? According to
their agreement which I submit I have proved, any
part of Indian territory w'hich may be liberated would
be immediately handed over to the l.H. A. If
you, as men of affairs, understand things rightly, it
is the only thing to do. Where is the question of
being an instrument. If, however, there was any
instrument, it was the Japanese, because it is they
who were assisting in liberating India, with a view
that the liberated parts of India would be handed
back to the I.H.A. The facts of the case are,
that the two proclamations were issued by the
representatives of both the Governments — Gen.
Kawabe on behalf of the Japanese Government and
Mr. Subhas Chandra Bose on behalf of his Govern-

ment. You may say nobody fights a philanthropic war.
But whether or not it was philanthropic remains to
be seen. I can well understand, and I submit it
for your consideration, that Japan as indeed one
of the witnesses said, that the East would be
better protected by a free India or that they might
have better prospects of trade which is their only
means of maintaining their standard of life, which
incidentally is also the means of Britain. It was not
a philanthropic war at all. So far as the freedom
of India was concerned, it was, I submit, the object
of that war, and you have it in evidence on oath
before the Court. It may well be, I presume it was,
that a free India might better be able to assist by
means of trade and otherwise to enable the Japanese
to maintain their high standard of life. Therefore it
is idle, unless people appreciate the true issue for them,
to say that unless you conquered territory there call
be no other object in assisting in getting its freedom.
It is that idle argument which I wish to meet before
this Court. But we are not left to speculation. My
learned friend cross-examined one of the witnesses.
He said, Oh, yes, you are assisting the Indian National
Army with a view to attain your Japanese war aims,
a.nd he thought he had got away with it. But when
we asked what were the war aims, then I am afraid
all this cross-examination fell to the ground He said
it was with a view to assist war aims which was to free
India. There may be many who doubt promises in
this country but I am not one of them. I am one
who looks on the brighter side of life and believe that
if Inma could be freed in that way, why honest men
should not believe it, it is difficult to understand. The
question before the Court shortly is this. What were the
relations between the I. N. A. and the Japanese Army,
ihat is the short point. It is a point of prejudice and
yet It IS my duty in defence of the honour of those
whom I am defending and the group to which they
belong that they were not the stooges of the Japanese,
as oheaplv might be said by the opponents. That

t7

We hold these truths to be self-evident, that
all men are created equal, that they are
endowed by their Creator with certain inali-
enable rights ; that mong these are life,
liberty, and the pursuit of happiness ” — (and
here I would like to point out that the recent

is the short history of the position of the I. N. A. vis-
a-vis the Japanese Army.

I was speaking about the quality of allegiance,
and I submitted to the Court that in a case
of this kind where you have got to administer
the law as a matter of justice, equity and
good conscience, you may have a case where the
country and the King do not coincide and w''here
there is an imposed allegiance on a subject people 2 ^>nd
I am not talking merely as a matter of theory. I am
going to give you an instance of a case of this kind
which has occurred in the days when the British Com-
monwealth was called the British Empire ; and the
statement that I wish to read is the Declaration of
Independence by the United States of America on the
Declaration of war and before they had attained any
statehood, as it is called in the cases which I. have
given. I am reading from a book called Speeches
and Documents on Colonial Policy edited by Keith
and published by the Oxford University Press in
London. It is at page 70. It says :

“ When in the course of human events, it be-
comes necessary for one people to dissolve
the political bonds which have con-
nected them with another, and to assume,
among the powers of the earth the separate
and equal station to which the laws of nature
and of nature’s God entitled them, a decent
respect to the opinions of mankind requires
that they should declare the causes which
impel them to the separation.

proiioiiiiceiBeiit, of Mr, Ttuvmn aad .of ^ ,,

Chiiroliill ate to the same effect) —

** that, to secure these rights, governments are
instituted among men, deriving their ^|ust
powers from the consent of the govemed, that,
whenever any form of government beconms
destructive of these ends, it is the right of the
people to alter -'Or to abolish it, and to
institute new government, laying it|
foundation on such piinciples, and
organizing its powers in such form, as to
them shall seem most likely to effect them
safety and happiness. Prudence, indeed,
will dictate that governments long establish-
ed should not be changed for light and
transient causes ; and accordingly all ex-
perience hath shown, that mankind are more
ksposed to suffer while evils are sufferable,
than to right themselves by abolishing the
forms to which they are accustomed. But,
when a long train of abuses and usurpations,
pursuing invariably the same object, evinces
a sign to reduce them under absolute des-
potism, it is their right, it is their duty, to
throw off such government and to provide
new guards for their future security. ^ ?^ch
has been the patient sufferrance of these
colonies, and such is now the necessity which
constrains them to alter their former systems
of govermnent. The history of the present
King of Great Britain is a history of repeated
injuries and usurpations, all having, in direct
object, the establishment of an abolute
tyranny over these estates, To prove this;
let facts he submitted to a candid world ; ’ —

(Then they cite the grievances— I will not
read them all. ). Then the statement says .

'' Nor have we been wanting in attention to
our British brethren. We have warned them.

from time to time, of attempts made by their
legislature te extend an. nnwarrantabie juris-
diction over us. We have reminded them
of the circumstances of our emigration - and
settlement here. We have appealed to their
native justice and magnanimity, and we have
conjured them, by the ties of our common
kindred, to disavow these usurpations, which
would inevitably interrupt oxir connections
and correspondence. They too have been
deaf to the voice of justice and of consanguin-
ity. We must, therefore, acquiesce in the
necessity which denounces our separation,
and hold them, as we hold the rest of
mankind, enemies in war, —in peace, friends.
We, therefore the representatives of the
United States of America, in General Congress
assembled, appealing to the Supreme
Judge of the World for the rectitude of
our intent ions, do, in the name and
by the authority of the good people
or thess colonies, solemnly publish and
declare and this is the. ^mint ) —
That these United Colonies are, and of
right ought to be, Free and Independent
States;” — (and then comes the important
sentence)— “ That they are absolved from all
allegiance to the British Crown, and that all
political connection between them and the
State of Great Britain is, and ought to be,
totally dissolved ; and that, as Free and
Independent States, they have full power to
levy -^var, conclude peace, contract alliances,
establish commerce, and to do all other acts
and things which Indedendent States may of
right do. And for the support of this decla-
ration, with a firm reliance on the protection
of Divine Providence, we mutually pledge to
e.ach other, our lives, our fortunes, and our
sacred honour*

Here you have a case in which this quality
of allegiance came to a test. They owed allegiance in
the familiar sense to the King of England. They
owed allegiance to their own country, and they
realised that the time had arrived when the ques-
tion became one of conflict between the allegiance
to the King and the allegiance to the country.
So that in accepted history, we have got a classic-
al instance of a case where the choice between
allegiance to the King and the allegiance to the coun-
try was presented to the world, and men of honour
chose allegiance to their cown ountry to the imposed
allegiance to a foreign king. Therefore I venture to
stand before this Court today with the most classical
illustration, the illustration of a race, of a country,
that has saved the world today, and in the last war
and did marvels in th^ cause of civilisation; and if that
illustration is not going to be respected, I submit justice
w^ould be denied completely, I submit that
what happened at Farrer Park, by reason of
the actual state of events in this country, was
perfectly legitimate, and indeed legitimised by what I
may call the course of history. Indeed it is amazing
how from the year 1770 to today the words are as true
as they were then : —

“We hold these truths to be self-evident that
all men are created equal, that they are endow-
ed by theiT* Creator with certain unalienable
rights ; that among these are life, liberty, and
the pursuit of happiness.”

' And I commend this to you, Sirs, in order that
you in your wisdom will consider it just, if ever any
question arises. This declaration took place on the
4th July, 1776; and ultimately a war was fought,
which resulted in 1781 in establishing what is today the
United States of America as an independent republic
of the world. I venture to submit this a his-
torical instance, important in its character, valuable

4i

as sbowmg’thB TO the world has functioned.

I want to call attention to the oath of allegiance to the
ProvisiGnal Government of Azad Hind and its context^
for it is important that you should know'- it.

‘‘ Indians in East Asia today are no more
the subjects of an alien power ; they are the
.proud citizens of the Provisional Govern-
ment of Azad Hind. To bring this home
to the mind of every Indian in Malaya and to
rouse our community to a full realisation
of the responsibilities of the new status, it
has been decided to ask each member of the
Indian Independence League to take an oath
of allegiance to the Provisional Government
of Azad Hind., Detailed directions regarding
this have already been sent to aU the State
branches along with the form of the oath.

Each member, on taking the oath, will be
given ‘oath of allegiance card’ and the
‘Indian Independence League membership
card’ he or she now holds will be taken back
by the officer administering the oath and
destroyed. The privilege of owing allegiance
to our government will be extended only to
members of the Indian Independence League -
as any Indian who is not a member of the
League cannot be considered as a true
Indian. As . Netaji said in his speech in
Sypnan on 25th October ‘we will not treat
them as Indians or friends. There is no
place for them in India.

What I wish to point out is that in so far
as these documents are concerned they evince the
same interest as was evinced by those who issued
the Proclamation of Independence of the United
States of America. *

The next point to which I wish to call attention
in this context is the law of treason with reference to

^ IS concerned, it is a loose

expression. The whole of the law on this snbiect
has been codified in the Indian Penal Code and I
call attention to Chapter VI of the Ind^^Penal
^ against the State. There you find

So'.? T^f S w'’™ “Otter

waging or attempting to wage war
gainst 121A is conspiracy to commit

122 is collecting

Im ?om%ir . Governor-Lnereretc!

AsS-'c nowlr n- against any

^siatec power m alliance with the Queen 126 is

■ “t

Jllowing prl™.;, of si ?r“i to .iKS

to_ a public servant negligently suffering such

Sriti" •“ ‘“o

oo ®">“iission to the Court is this. In so far

as the question of the law of treason is concerned ij
this country, my learned friend cannot talk of treason
caUed treason in the commorSw
“y 3,®^rned friend would have to look to

In Indian. Penal Code

In other words my submission to the court is this—

speaking, . apart from Section 121 my

learned friend will not and has no right to reSrt to
what he calls the principles of treason.

The next point to which 1 shall call nttoT^+ir^Jl
on page 95 ^ transcript of it here. It is

P^®'®®'^ imder the

protection of another that is more powerful,.

or lias even entered into subjection to it witb
a view to receiving its protection — if the
latter does not effectually protect the other
in case of need, it is manifest that, by tailing
in its engagements, it loses all the rights it

had acquired by the convention, and that the

other being disengaged from the obligation it
had contracted, re-enters into the possession
of all its rights, and recovers its i ndependence

or its liberty. It is to be observed that this
takes place even in cases where the protector

does not fail in his engagements through a
want of good faith but merely through
inability. For the weaker nation having
submitted only for the sake of obtaining
protection— if the other proves unable to
fulfil that essential condition, the compact is
dissolved— the weaker resumes its right, and
may, ifit thinks proper, have recoume to a
more effectual protection. Thus the Dukes ot
Austria, who had acquired a right of pro-
tection and in some sort a suvereignty over
the City of Lucerne, beii^ unwilling or
unable to protect it effectually, that city
concluded an alliance with the three first
cantons; and the Dukes having carried
their Complaint to the Emperor, the inhabi-
tants of Lucerne rephed “that they had used

the natural right common to all men, by
which everyone is permitted to endeavom
to procure his own safety when^ he is
abandoned by those who are obliged to
grant him assistance.

This is the law which has been enunciated and
accepted in England ever since. This was in 1797.

My submission is that the insuigents are in
the position of rebels up to a stage, but a stage is
reached tirhOTe if the State has an organised army

it becomes possessed of the right of belligerency,
erm though they may ultimately fail. The ques-
tion of allegiance does not arise then, but I would not
be surprised if with a view to divert the discussion
into a wrong channel any such statement is
made.

Before I go further, I wish to make quite
clear a point about the prisoners of war. The
prisoners of war may submit even to the extent of
assisting the enemy — that is passive assistance up to
the point of labour. You will find ip. the same books
that they may not actualjly join the enemy and in this
connection I wish to submit to the Court what
was the relation or the I.N.A, to the Japanese.
You belong to the profession of arms and will appre-
ciate what I am submitting to you. I have stated
the position as much against myself as possible.

I am now assuming that the events which took place
at Farrer Park did not take place. I am assuming
against myself that they were" just prisoners of war!
The question still remains what is it that thev did. The
question arises whether they ever allowed themselves
to be used as what I might call topis of the enemy or
any other instruments, whatever the phrase used.
Having beep surrendered as prisoners of war, if the
Japanese chose to leave the Indians to secure their
liberty —(I am wiling to agree that it suited them)
that by itself does not bring the I. N. A. and the
accused before us within the prohibition imposed upon
the prisoners of war. It is a point that 1 wish to
elaborate up to a stage. I wish to state that there is no
obligation whatever which prevents a person who is a
prisoner of war from fighting on his own for the liberty
of his own country. 1 submit that my learned friend
will not be able to controvert that, and therefore
I wish to make it quite plain that the question of the
relation between the Japanese Army and the l.N. A.,
the question of the objective of the Japanese as regards
India— these points have got to be re-emphasized

before tins Court. tJ-nless they are bbrtih m mind/
the Court may easily go into a ■wrong track.

The point is this. I quite agree that the Court
or any member of it may say : ''They were fools in
believing the Japanese”. That has nothing to do
with the case. Other men may have been wiser. The
question is whether those who formed the I. N. A. did
believe in a bona fide manner that they would be able
to secure the freedom of the country. If they bona
fide believed it, the fact that there are wiser men on
earth does not after the issue so far as the renounce-
ment of the guilt of that army fighting for the libera-
tion of India is concerned. Hence it is that I wish
to submit that the evidence which I submitted yester-
day and a few more passages to which I wish to call
attention today is relevant for that purpose. You
have it in evidence and it is a matter again in which
the question is of one’s own belief. The question is
not whether that belief was something which probably
the Court or any member of it may think was of very
credulous people. That has n6thing to do with
the point. You have it definitely in evidence before
this Court, in the' evidence of prosecution witnesses,
that if any nation or any race or any class came into
being to oppose the independence of India, they were
prepared to fight that, including the Japanese. That
is why I was very anxious to point out that it is only
when a story is completely pieced up and comes before
the Court that its significance can be appreciated. The
whole point of it is that the question is not so much
as to whether you or I or anybody else would have
relied upon it as a promise. From that point of view
probably we are a credulous race. We have relied on
many promises of others and of Japanese also. But that
has nothing to do with the point. The point is that
if these people honestly believed, as I say they did,
that they were securing the independence of India,
then the question of what a prisoner of war cannot do,
does not actually arise and will not arise.

I

In this connection I would like to' ree^d the evi-
dence of Nag. The question that I put to him was;
Do you remember ever attending a meeting in Singa-
pore at which Capt. Mohan Singh told the prisoners of
war that if need be they would fight the Japanese in
addition to the British I He said he would fight any-
body who stood in his way even if it were the Japanese
or anybody else. The next is P.W. 9 Havildar Sucha
Singh, and this is the passage to which I wish to refer:
■^‘He said that the I.N.A. has already been started in
Singapore and a good many people had joined it; and
the I.N.A. will only fight for the freedom of India and
for no other cause. If we go to India and the Japanese
go with ns, we are equipped with arms, and we
will fight the Japanese if they turn round against us.
This is a golden chance for us and we may not get such
a chance again.’’ The next witness is P.W. 18: He
said : ‘‘After I was posted to Bose Brigade, Captain
Shah Nawaz Khan delivered a lecture which I heard.
He said that the Bose Brigade which was formed was
to go first of all to the front, and this Brigade is com-
posed of picked officers and men.” And then . the
passage goes on ; “He also said that if and when we
fight with our allies the Japanese nation, it should not
happen that we remain as second rate in the fight and
thus disgrace our nation. When we reach India we '
shall meet Indian men and women, and those who are '
elders to us we should consider them as mothers and
those who are younger we should consider them as our
daughters and sisters, and if anybody will not obey
these instructions he will be shot dead; and if and when
India is freed and the Japanese who are now helping
us tried to subdue us, we shall even fight them.
He also said that even now if a Japanese gives you one
slap, you should give him three in return, because oun
•Government is parallel to their Japanese Government,
and we are in no way subservient to them, and that
when we reach India, if we notice any Japanese
maltreating an Indian lady, he should be
first warned by word of mouth not to do

Bf.4

so, but i£ be contmued to do. so, we were at
liberty to use force and even shoot him in order to
prevent it, because the fight which we are making now
is for the freedom apd well-being of India and not
for the benefit of the Japanese. This lecture was
delivered in Taiping,*' Then, I come to P. W. 19.
He said: “ I was aware of the declaration of the
Provisional Government of Free India. Prior to my
joining the I. N. A. I was in a prisoner-of-war camp.'"
Then I come to the other passage which is relevant
for the purpose. “I knew after joining the army that
the sole ambition of the I. N. A. was to fight for the
freedom of India against any army in the world, but
my own idea was not to fight but to escape. By ‘ any
army in the world ’ is meant also the Japanese. " Then
I come to P. W. 24. He said : '‘In August 1943 I
* was in Neesoon campi.: Gaptain Shah Nawaz came
to address the Heavy Gun Battalion there. He said
that the I. N. A, had been formed for the liberation of
India and it would fight not only British Imperialism
but also those would put obstacles in the way of
India’s freedom or any other party which wished to
subjugate India.”

I had hitherto avoided reading any evidence
because there was no substantial contest as to the
facts which have been proved. The record of evidence
clearly shows that in so far as the I. N. A. was con-
cerned, they acted on their own. No doubt, they
accepted the alliance with Japan on promises which
they, at all events, honestly and sincerely believed,
and if they believed them, I submit there can be no
question of any obligation. There are so many
matters which have been gone into and which in
patience we suffered in the belief that ^there was no
relevancy to the charges before the Court. But now
that they are before the Court, I must separate them
as best as I can and, while separating them, give
answer to every single suggestion that was made or is
be made. Hence it is* that I am here before

the Court to point out that in doing what the I. N. A.
did, there was no question of any breach of any obli-
gation or the prisoner of war obligations or duties,
remembering the extreme obligation, which, I submit,

I have stated as strongly against myself as it is
possible to do.

The next point to which I wish to call attention
is this. In addition, there is the evidence of the last
witness, B. W. 12, and that sets out more or less fully
the point of view of those who honestly believed in
doing what they did. I am not saying that the Court
is not called upon to examine the matter in its
own light. At the same time, the Court has got to see
not so much what any individual member might have
done as iiiat whether you believe what they said
before this Court and that was their object.

This witness said : ‘‘My reasons for joining the
I.N.A, were many. I admit that it was a difficult
question to decide whether I should join the I.N.A.
or not, because there were many factors which I had
to consider. It was a momentous decision. Uptil that
time It was not greatly interested in politics or the
political welfare of India because I was educated that
way, and moreover when I joined the Indian Army in
1936 I felt that politics was not encouraged in the
Indian Army and hence I stayed away, but when the
question of I.N.A. arose and we had to decide whether
we should join it or not, I had to think deep, but it
was such a big question that I could not make a deci-
sion myself.”

The reason why I am reading to the Court is this.
He was a witness of truth and the very fact that they
had a conflict in their minds is illustrative of the
extreme bona fides of the men who chose to take the
course which they did. Hence it is that I shall read a
few more lines of that evidence: ‘T remember some-
time in the beginning of July 194;2, when we were

8 %.*

being asked whether going to volunteer for

the I,N .A * or not, I was staying at Mount PI easant ,
Singapore, where Capt. Mohan Singh had his head
quarters. I know Capt. Sahgal for the last 12 or 13
years • we were in College together and we were friends
there. I felt that if I had a discussion with hiin along
with a few other officers, we may come to some decision
regarding volunteering for the I.N.A. So in the begin-
ning of July, he and two or three other officers came to
my bungalow at Mount Pleasant and we went through
this question of joining the. I.N.A. We discussed all
the pros and cons. We unanimously decided that
under the circumstances we all owed our allegiance to
our^country.

We also felt and agreed upon that so far con-
cerning our career in the Indian Army, there had been
distinctions between the British officers and the Indian
commissioned officers. The Indian commissioned
officers had not been treated as well as our English
comrades or brother officers. We also felt that if the
•senior officers present in Singapore or in Malaya did
not join the I.N.A., it was quite possible that the
Japanese would exploit the Indian prisoners of war,
because then the Indian prisoners of war would be
siffit up into small groups. Some people would join
and some would not, and the Japanese would take
advantage of that and enrol people from amongst
the prisoners of war who would be willing to do
any service for tbemr We felt that that’ would be a
disgrace to Indians!^ W agreed i that if the senior
-officers joined the I. N. A. and formed a strong party
and organised the I. N. A. as a regular army and
fought the Japanese on every point regarding the
army, we woffid have a far stronger* position with
the Japanese than otherwise. We also felt that if we
created an army of our own, we may be able to
•estabish a certain amount of standing with the
Japanese, and by doing that we may he able to stop
the Japanese, from committing any atrocities on the

sm

Indians in Malaya. We had seen what the Japanese
were doing to the Chinese and Anglo-Indians and ^ the
Malayans. They were not treating them very well.
Certain atrocities had been committed on the Chinese
and also on the Eurasian community, and we thought
that if the Indians refused to join the I. ]SF. A. it was
quite possible that the whole of the Indian community
in Singapore or in Malaya might suffer So we had a
discussion on ail these points. But then arose the
question that if we did join the Indian National
Army, what would be the reaction of our people in
India ?

My suggestion to the Court is this that, apart
from the process, the thought which the last witness
brought to bear upon it and the discussions which he
had with other people, clearly show that they did not
take the steps either dishonestly or hastily. They
took this step after taking into account the whole
of the situation in existence at that time, and the
future as they saw it.

And if that is the condition in which they did
it, I ask the Court to hold that they honestly believed
in the propriety of the step they took and the justice
of the cause for which they toolc it. And hence it is
that I wish to point out to the court that it was not
a case, as the text-books say, of a prisoner Of war
joining the enemy in order to fight his battle. That,
I quite agree, according to the text-books he may not
do. But where a prisoner of war already released, as
I have told you earlier, fi.nds himself in the situation
an which he did and then fights for himself and for
his own country, being prepared to fight against the
J apanese themselves if they ever became untrue to them,
in such circumstances, 1 submit, there was no question
and there could be no question of the Indian National
Army being guilty and of those w^bo joined that army
being guilty of any act which may be regarded as cont-
rary even to what you may call the code of duties

m

imposed tipon a prisoner of war. I have already sub-p
mitted and at the risk of repetition I will say, that
it is entirely irrelevant and there is no such thing as a
charge against these men before you of a breach of
duty as prisoners of war. In fact there is no such
charge in the Indian Penal Code, so far as I can see.
There may be a charge under the Indian Army
Act but no such charge is at present before you.
There is not even a charge of desertion and indeed
there cannot be, for when the prisoners of war
were surrendered there was no occasion for deser-
tion. So let us not be carried away by what
you may call the popular language of desertion,
breach of duty and all the rest of it. Let us
concentrate, and I ask the Court so to do, on the
charge on which the accused are on trial before
the Court, and on that only. The rest is a matter
of prejudice ; and if one has a complete answer
even on a matter of prejudice, it is a matter of
satisfaction. It is a matter which I understand
— and I appreciate — that tribunals of this kind
are likely to take account of, namely, that general
bona-fide, honesty and integrity aU goes to the credit
of individuals who are on trial as so much in their
favour.

Then, Sirs, there is one piece of evidence in so
far as this particular matter is concerned, a piece
of evidence of extreme importance, and that is how
the first I.N.A. broke up. As to how i4 broke
up you have evidence before the Court and it is
unanimous as to the reasons for which that event
occurred. Rash Behari Bose was for many years in
Japan and he was too easily inchned — ^to put it
most mildly — to believe in the Japanese. Mohan Singh
on the other hand was very cautious. Mohan Singh
in fact has himself evinced by his conduct that should
anything happen to him, that is to say, if he is
arrested or removed, the army should he dissolved.
And the real reason is this, that while on the one

iiand Mohan Singh was anxious that there should be
an army formed for the liberation of India, at the
same time he was equally anxious that the army
shduld not serve as a mere instrument of Japan. And
it is because he had his suspicions, is because — of
the Resolutions in the Bangkok Conference with regard
to making clear the aims of the Japanese for the pur-
pose of fighting the war so far as India was con-
cerned, — that Mohan Singh began to lose faith in the
promises of the Japanese. And as soon as the
Japanese realised that through the agency of Rash
Behari Bose — and you haye picturesque evidence here —
Rash Behari Bose came along, collected all the senior
officers and declared that Mohan Singh had been
removed. I could not quite appreciate, with all the
thought that I devoted to it, the point that my
learned friend made or attempted to make as to
whether he was actually removed by Rash • Behari
Bose or by the Japanese. For my own part I do
not mind the suggestion that my learned friend made
that the Japanese arrested him. That is precisely
the point, that the first I. N. A. was at a stage
at which there was a trial of strength between
those Indian nationals who were members of the
I. N. A. and the Japanese. Later on when the Japa-
nese realised that the Indian National Army and those
who were likely or wanting to join it were not prepared
to become tools in their hands, that there was a break,
and hence when you come to the second I. N. A., when
Subhas Chandra Bose took command of the Indian
National Army, the second time you find an association
between the two armies, -—may be very unwilling on
the part of the Japanese. Very often one has to make
a choice when one finds a strong man on the otherside:
and hence it is that I wish to insist_ before this Court
that throughout the dealings between the I. N. A. and
the head of the Provisional Government of Free India
at this time, the position taken up by them was not
of an instrument of^the Japanese, but a body formed
with the object of liberating themselves, no doubt get-

ting all tbe assistance from the Japa-

nese as an allied army* And that, I submit, is the key
to the bona-fide of the men, the belief of every indivi-
dual man who at aU events tbinkingly™-* if I may use
that expression^] oined the I. N*. A. I daresay it. often
happens in the world that once you find a thinking and
leading man taking a course, other people bonafide
believe it to be the true course and join it. Therefore
I submit there is ample evidence on record, evidence
emanating from witnesses which in ordinary courts
and tribunals is the best to be relied upon by the de-
fence, evidence from prosecution witnesses, not all
willingly given, that they fought their own ground,
they fought their own cause, and therefore there was
no question whatsoever of their breaking any duties
which they owed as prisoners of war. But you have to
remember all the time and again and again that there
is no such charge in the trial before you. There are
only two charges before you which I need not repeat.
But T want to be quite careful because it will be my
duty to deal with the material^ lest it might be sug-
gested that I did not deal with it, and 1 wish to point
out its relevancy and its significance to the extent to
which these points bear on the conduct of the men on
trial before you. I have no desire to shirk an inquiry ;
in fact I am here as far as I can— -apart from any ques-
tions of private opinions on political issues — to impress,
upon you the truth, integrity and sincerity of men,
which after all is a bigger asset sometimes than the-
legal technical issue. There is also the evidence of Lt.-
Col.^Loganadan, D. W. 7 with reference to the ques-
tion; and I am obliged to refer to it particularly be-
cause of the pamphlet called Our Struggle which
was placed before you. There is just one point which
I must make before I read the evidence, that all that
is proved is that the pamphlet was issued. But I hope
and trust that my learned friend will not suggest that
the mere fact that a pamphlet is issued, that -by itself
proves the truth of the statements made therein. Let
me therefore begin by saying that I am not obliged to

i explain why Rash Behari Bose said what he did. It
will be an erroi; on the part of the Court to say that
because Rash Behari Bose said something about Mohan
Singh, therefore it is true. At the same time I wish to
call attention to this evidence with a view to pointing
out the terms on which Mohan Singh and Rash Behari
Bose stood, with a view to point out that any allegations
emanating from the disappointed Rash Behari Bose at
that time are not to be taken as words of truth.
Secondly, in any case an allegatian made by A against
B, neither of whom has appeared in Court as a witness,,
is proof of the allegation made by him.

With this observation I now call attention to-
the evidence of p. W. 7 (Lt.-GoL Loganadan).

I know Captain Mohan Singh. When I joined
the Indian National Army he was G. 0. C. The
relations between Captain Mohan Singh and Rash
Behari Bose were not very happy. Of my own
XJerso^al kaowiedge I know that Rash Behari Bose,
having lived so long with the Japanese, was inclined to
be guided and controlled by them. Whereas Mohan
Singh said he felt that the Japanese should be dealt
with a firmer hand than what Rash Behari would be*
able to do.

I then come to D. W. 12 (Captain Arshad)..
The passage to which I call attention is this : —

“ I was in the first Indian National Army
Headquarters, then as General StaiT Officer in G
Branch. The first I. N. A, was dissolved in December
194:2. The I. N. A. had been raised after the Bangkok
resolutions were forwarded for ratification to the
Japanese Government. The Bangkok resolutions were
the result of a Conference held in Bangkok in June.
There were many resolutions in that and they were
passed by the Conference and then sent to the Japanese
Government for ratification, and we hoped that the-
ratification would come quickly; but as the days went

hj Captain Mohan Singh, who was then G. 0. C. of the
Indian National Army, felt that the Japanese were
delaying the ratification of the- Bangkok resolutions
^tnd he asked the Japanese liaison body which was
^jittached to us, called the Iwakuru Kikan to ex-
pedite the ratification of the resolutions. They were
not very clear in their replies. They tried to delay
them as much as possible. I was present. Captain
Mohan Singh kept his headquarters informed of all the
•correspondence and the arguments which he was
having with the Japanese. Captain Mohan Singh told
us his doubts of the intentions of the Japanese. He
«aid that he noticed that the Japanese were not
playing the game, and he said that if the Japanesfe
continued with that attitude of theirs he would dissolve
the Indian National Army, and we all agreed with him
because we felt that unless and until there was a clear
understanding between the I. N. A. and the Japanese
we would not continued the Indian National Army.
■Besides that, there was another main point of dissention
between the Japanese and Captain Mohan Singh. At
the Farrar Park meeting the Japanesb had handed
over all the Indian prisoners of war to Captain Mohan
‘Singh. Until that time the members of the I. N. A.
:as well as those prisoners of war who had not joined
tihe I. N, A. were under the command of Captain
Mohan Singh. • But in December the Japanese wanted
to take those people away from Captain Mohan Singh
who had not joined the I. N. A. Captain Mohan Singh
felt that the Japanese were not keeping to their word
and he refused to part with the prisoners of war. These
main reasons as well as the other minor reasons forced
us to dissolve the 1. N. A.

And, Sir, the Bangkok Eesolution No. 13 which
is referred to, reads thus :

‘'(13) Resolved that the Indian National Army

shall be made use of only.

(a) For operations against the British or other
Foreign powers in India.

(b) For the purpose of securing and safeguarding

Indian National Independence, and

(c) For suoli other purpose ■■■■as. may assist the

achieTementof the object, viz, Indian

Independence.

Lt. Nag (P. W. 1) refers to the same subject

ill these terms •

‘'Oapt. Mohan Singh left written instructions
that if he was arrested, the I.N.A. should ^be
- dissolved. ‘In the event of my arrest the I.N.

A. will be dissolved and all thel.N.A. badges of
rank and records will be destroyed.’ There
was a general feeling from the beginning that
the I.N.A. should not be subordinated to the
Japanese and that we would not allow it to
be subordinated to the Japanese. There was
no question of dissolving it at any time during
those days. The predominant motive was to
free India for the sake of Indians.

“After the 2nd I.N.A. was formed the same
feeling was there, until Subhas Chandra Bose
arrived in July 1943. After that everybody
thought that they had got a leader who could
guide them on proper lines without being sub-
ordinated to the Japanese. Thereafter the
two armies fought as Allies, i.e., the Indian
National Army and the Japanese.”

This, 8ir is the evidence which has been placed
before this Court. As I said, my submission before the
Court is "hat it was when the I.N.A,, which was formed
on the second occasion, felt confident that they would
not be subordinateid to the Japanese that they really
fought as Allies. And hence it is t|iat I submit to the
Court that in so far as relations between the I.N.A.
and the Japanese Army were concerned, it has been

97

established by evideBce that they were of the character
which I claim for them, liameiy as alies. So far as
the I.N.A. was concerned, it was actuated by only one
motive and one business, and that was to secure the
freedom of India. That is the issue, which as I
have said, does not actually arise, but which was bear-
ing on the integrity of purpose of those who are
on trial as members of the Indian National
Mxmj.

the next point to which I wish to
call attention is the evidence before the Court that the
Indian *National Army was completely officered by
Indian officers. True, an attempt was made by my
learned friend in crosa-examination as to the question
of the High Command. I do not deny for a moment,
though I do not understand or profess to understand
very much the organisation of armies when they fight
'together for apparently the same purpose in any case,
but knowing what you dp about the last but one ^ya^
and the last war, when any question arises of unified
command it serves very little purpose to suggest that
in so far as the higher strategy is concerned, it was no
doubt in the hands of the Japanese. No doubt pro-
bably they claimed at all events that they understood
the art of war better, and that after all the Indian
National Army consisted of men of not that standing.
But apart from accepting better judgment on what
should he the proper strategy, when it came to a
question of internal administration cf the I.N.A., it
has been amply proved before the Court that the
I.N. A. was entirely independent in its composition,
including every officer. The evidence of Lt. Nag is
in these terms :

‘"The whole of the Indian National Army was
trained by Indian Officers and not by the
Japanese, It was entirely and throughout
officered by Indian officers and not by
Japanese officers.

The colours of the Indian Katioiial Army
the Indian National Congress colours, i.e,
saffron, white and green. Their badges were
distinct from the Japanese badges.’’

And then he answered other questions which are
immaterial, namely that among the colours in the middle
of one of the badges there was a brown star and it
was resented by the personnel of the I. N. A. as it
might be mistaken for the rising sun.

P. W. 19 gave the following evidence :

*‘So far as I am concerned, I took instructions
from our own Indian officers only and not
from the Japanese. As far as I am aware,
there were no Japanese in command in our
area or otherwise in the I. N. A. I was
Assistant to Lt. Abdnr Rehman who was left
in charge of the rations atlTalam. There was
a long carry of 48 miles for rations. The
rations consisted of rice, salt, oil and sugar.
Sugai^ was very scarce. The rations were
verv short consisting of rice, salt and a little
oil." The Indian National Army was fighting
under great hardship on that front. Whilst
I was in the I. N. A., I carried out my duties
faithfuUy.”

The next point which I wish to make is
that apart from what you may call the general higher
strategy, the Indian National Army was ^completely
independent. And though I am not anticipating a
point which it will be my duty to argue, namdiy
whether or not the question arose that people joined
the I. N. A. because they might be worse off as
prisoners of w'ar, the less said about it the better.
The evidence clearly shows that the only ration that
the I. N. A. had, apart from sugar and oil which was
nominal, was rice, and that was the luxury which

attracted men to the I. A. My learned friend will
consider twice over- before* trying any such argument.
The question really 4s that one set of men believed in
a cause and the other set of men either from suppineness
or otherwise did not, and nobody ever gave thought
to the question as to whether one would l^e better
off or . not. One thing is quite certain : that apart
from what actually happened by the conduct of the
Japanese, those who joined the ,1. N- A. w^ere
certainly facing the possibilities which every soldier has
to face, unless he wishes to avoid it, which prisoners of
war could, namely fighting with the opponent army.
And, therefore, my submission to the Court is that this
idea of. contrasting the comforts of the I. N. A. and the
comforts of the prisoners of war under the, Japanese,
is entirely overdone. It is entirely a question as to
w’^hat points of view appealed to one or the other
sets of men, and therefore, Sir, my submission is that
in so far as that is concerned, we have now been able
to place before the Court the actual evidence on the
question.

. The next point is that theT. N. A. was a purely
voluntary army, and notwithstanding the^ attempt
made, the Prosecution entirely failed to prove that
it was not voluntary, because from time to time it has
been proved before, this Court by the speeches made
by the accused and Sri Subhas Chandra . Bose, whicli
indicate that at ' every stage opportunity
was given to . every member of the I, N; A. to with^
draw if he chose to do so. But the strongest evidence
is this : It is common ground, apart irom actual
principles which have not been accurately proved,
that -only a portion of the volunteers could he armed,
equipped and trained, because of the paucity of
material, and that there was a large number of people
who could not be trained and could not be armed for
w'ant of resources, — what is called the surplus volunte-
ers. But I put it to you, Sir, as men of commonsense
that it would require very much effort on the part

of my learned friend to say that when they had more
than enough men already, that they coerced more
people to join the I. N. A. Or, in the language of Lord
Shaw, I think it’ is a statement that stultifies itself
because it is stated that ‘ we have enough men and we
‘Cannot arm them,* and yet it is alleged that, .you go
on coercing people to join. I think it is a folly of
which no decent human being would-be guilty if he
had a grain of oommonsense. What has aotuaUy
happened is that people have been punished for crimes
of their own, and in order to appear glorious before
this Court, they attributed it to pressure by the
I.bT.A. It is a very clever half-truth, which is not
uncommon.

You get a fact which occurred. Then in order to^
^appear vii^tuous lie would say that he was puuish-
•ed to be coerced to join the I. N. A. A more ludicrous
story could not have been presented to the Court,
because in one case the witness admitted the reason
why that took place. They were sent to the detention
■camp. Having been sent there, they were asked to
surrender their ring -leaders. When they did not, ten
people came and there was a free fight— 300 on one side
.and 10 on the other. And for the Government to put
forward this sort of half-baked, story in order ^ that the
Court may swallow it passes one’s understanding.

This is Lt.-Nag: ‘‘I heard Subhas Chandra
Hose state at a meeting held soon after the meeting
of the 21st October 1943 that anyone who wished
to leave the I. N. A. , was permitted so to do.’’

P. W. 5: Prior to my arrival at Port Dixon

in Kuala Lumpur— ^t that time I was i-n

^^^^^' ‘JCupanese— the bad conditions were due to the
Japanese. In January-Pebruary 1943 I saw Capt.
Shah Nawaz for the first time when he came to collect
volunteers. I am quite clear that Capt. Shah Nawaz
Khan left it open to everybody to join the I. N. A. or

tiot ttey clios#?. I reiaem'ber that heVanted staunch
men who were prepared to lay down their lives for the
freedom of India. I never saw Capt. Shah Nawaz
after that lecture.’’

P. W. 24 : I reached Popa on the 25th or 26th
February. Col. Sahgal said at Popa that those who-
^d HQt wish to stay in the I. N* K and wished to go
Over to the enemy should tell him today. He will then
make arrangements to send them in one party to the
enemy, but they will not be permitted to take any
arms or papers with them. H do not want that mei\
should desert in driblets.’ As far as I understand it
Was Sahgal’s intention that after the party went over^^
men should not go over in driblets and sa Qause
Uemorali sa tion, ”

D. W. 6 : ‘‘ The recruitement was absolutely

voluntary. We had surplus volunteers
whom we could not train or arm.”

D. W, 7 : ‘‘The Indian National Army was
purely voluntary. As far as I am aware
no coercive methods were used in recruit-
ing. I am aware as a member of the
Provisional Government that we declared.
Wfl^r on Britain and America^’

l?hen, sir, there is one more statement referring:
to Capt. Dhillon, to which 1 wish to call attention. My
submission to th® Court is that in so far as the accused
before the Court are concerned, they by their open
speeches gave everybody to understand that it was
entirely their own choice whether to join the I.N.A, or
not.

That brings me next to the evidence about the
alleged coercion for the purpose of compelling men or
inducing men to join the I.N.A. The position, Sir, is.
this with reference to that. At the time when the-

question arose as to the admissibility of, the eviden^,
it was c-indidly stated by the Advocate-General tha-t
he did not rely on Sec. 10 but the in whio^i it is
souijbt to make it relevant is this. _ He said that the
accused did not parbicipate in it, did not do it, did not
encourage it. Hut that they knew about it,

Tlie matter did not rest there. When they
asked other people to join the I.N.A., they gave a
veiled threat: “Bememher if you do not join, whathard*
^Mps exist.” And the matter was further strained
before this Court by saying— meaning thereby among
other things— that there would be personal ooereiom
It was on that statement that this honourable. Court
was pleased to admit the evidence. The attempt was
made to show that the accused made this veiled sug-
c^estion. That attempt has completely failed becau^
Cant. Dhargalkar who was called to give evidence in
support of this, fell through. 1 shall read that part of
his Widence to show that he completely collapsed m
what he eame to prove. He came to prove that the
three accused, or some of them, went with the other
officers. He came to support what the Advocate
General was instructed to put forward, namely, that he
was given the alleged veiled threat. When we came to
cross-examine Capt. Dhargalkar, he said : ‘I was never
asked by anybody. I was never addressed by anybody”
and the more significant thing is, he ended hy saying -
“I cannot st^te to the Court who said what to anyone.”
The net result of his evidence amounts to this that the

Government having undertaken to this Court to prove

that the veiled threat was given in that form, and
that meant evidence possibly relevant in the eyes of
the Court, the evidence was allowed to be given. But
in the light of the evidence of Capt. Dhargalkar, there
is none in which any allegation of a veiled threat exists.
I therefore ask the Court to hold that evidence as
completely irrelevant because it wus admitted on this
provisional promise, namely, that it would be proved
that there was a veiled threat given by the accused.

103

because there is no other in which it could be
made relevant* Thei^ is no charge against the accused
of any personal cruelty of. any kind. There was no
charge that they encouraged it, and the mere fact that
they had knowledge would not. be anything, — even that,
they have failed to prove. When I pointed out that
mere knowledge was not enough, my learned friend
added a further point, which I presume induced the
Court to allow that and that is when they used the
words which they _ are alleged to have used — ‘' If yon
do hot join remember the hardships” — meaning thereby
that in as much as they knew that wrong methods were
being adopted, they threatened the men by saying
wrong methods would be adopted in their case. That
I submit is the only process of reasoning by which he
attempted to make his evidence relevant- My learned
friend has . completely failed to establish either the
knowledge or alleged threat, and for these reasons, Sirs,
I submit that this evidence should now be excluded,
and I have prepared a petition so that it may remain
on record for my submission.

The learned Judge Advocate told the Court
on the occasion of the question of admission of
the evidence :

The learned Advoeate-G'eneral really bases
his case on the speeches of the accused
which he will prove showing, as he says, that
the accused referred to the hardships which
would be inflicted on prisoners, of war , unless
they joined, and thereby implying that they
had knowledge of the methods by which
he alleges that recruiting for the l.N.A. was
being carried on.

At the same time, now we have arrived at
a stage when I respectfully ask that the Court should
rule that that evidence should be entirely disregarded,
because there is no .proof, of the proruise on which

tliat evidence was submitted^ That is the formal
application I make to the Court.

■Judge-Advocate : Do you mean that yon are
■asking us to make a decision on this now ?

Counsel for Defence : On this point.

Judge-Advocate : I am afraid it is not at all the
procedure to make piece-meal decisions on parts of the
■case, without hearing the learned Advocate-General
and without hearing me. That decision will be made
in due course, but I must ask the Court that they
should go on now without making any piece-meal
decision at this present stage.

Sri Desai : I shall leave it at that. I thought that
I would save the Court/ and perhaps incidentally
myself, the necessity of having to go through that evi-
dence, to show how utterly useless it is. But that
being the view of the Court, I will not pursue it.

That brings me to the next question. My sub-
mission is that the basis on which that evidence was
admitted has complejieiy disappeared ; and in as much
as it has disappeared it should not be taken into con-
sideration in this case at all.

The only reason why I thought it my - duty to
■call the attention of the Court at this stage wa^ that
you might have to go through the evidence and think
if it is relevant. .

The first witness, to whose evidence I think it
necessary to call the attention of the Court, is Capt.
Dhargalkar. This is what Captain Dhargalkar said in
his examination in chief :

‘‘ I do not remember Lt. Dhillon being there,
but ! remember Capt. Shah Nawaz Khan

105 '

^nd Capt. Sahgal coming there. I recog-
Mse both these officers as accused before the
Court. Ne^^^ of the two accused ever
spoke to me, but discussions usually, took
place and nearly all the discussions were con-
cerned with our joining the I. N. A. I was
present at these discussions. It is very diffi-
cult for me to quote the exact words which
Ca,pt. Sahgal and Capt. Shah Nawaz Khan
said, but the gist of the thing was: ‘Why
don^tyou an join the I. N. A. rather than
waste yourselves living under these condi-
tions.”

That is really the whole point. Let mfe exa-^
mme whether the promise is fulfilled even in the exa-
mination in chief. If conditions ” merely meant

conditions as prisoners of war, whether for the time

being under the I.N.A. or the Japanese, that is not a
matter of charging the accused. But I suppose my
learned friend will Use the word “ conditions ” to mean
almost anything, meaning thereby that “ some people
did something to somebody else and that will be your
condition/- I submit it does not carry the matter far

i would then gsliI to the cross-exami-

nation of this witness. He says

I saw all the three accused on several occa-^
sions. I saw them anything between 20 to 50
times. I only spoke to Capt. Sahgal- a
couple of times ; I do not remember having
spoken to Capt. Shah Nawaz Khan or Lt.
Bhillon. I spoke to Capt. Sahgal in Col.
Bhonsle’s house. I cannot remember any
other occasion. I was present at fifteen occa-
sions at which discussions took place. Capt.
Shah Nawaz may have been present about
twice and Capt. Sahgal was present about the

same number of times. Tliis was in a separa-
tion camp at Badadari, The^ was one huge'
camp at Badadari and also a separation-
camp. I was in the separation camp. The
whole of the Badadari Camp was the Indian
National Army camp. We were taken there
by Capt. Mohan Singh. There were about
sixteen of us living in the room. I did not
take part in the discussion nor was I address-
ed by Capt. Shah Nawaz or Capt. SahgaL
That is all that happened during the discus-
§ion/?

Then he goes on to say :

Capt. Shah Nawaz Khan came there, but 1
do not know whether he came to see Capt.
Sher Dil Khan. I was not invited to a dis-
cussion, I was living in the room and I
overheard certain conversations. I cannot
remember the words of these discussions ac-
curately but I remember the gist of them.
The gist of the conversation included many
other subjects other than the Indian National
Army. I was addressed but not by any oi
the officers present there. Capt. Shah Nawaz,
Khan was speaking to 16 other people. Tha
gist of his conversation was : “ Why do you
not join the Indian National Army I re-
member that occasion to the best of m^^
knowledge. It may have been any time in
that month. I cannot remember all that he.
said. I cannot say exactly what he said/’

(Yoti will see, Sir, ^ change in the gist. There
was no question of what consequences would follow.)

I cannot remember exactly what he said.

I cannot single out from the others what
Capt, Shah Nawaz Khan said. My answer is

107

the same with regard to Capt. Sahgal
What I told the Court is the general impres-
sion without ktfowing who said what.”. .

- This is the evidence of Capt. Dhargalkar, and
I respectfully and emphatically submit to the Court
■ that the promise on which that evidence was admitted
remains unfulfilled ; and in as much as . it : remains un-
fulfilled, my submission is that the evidence should
be disregarded completely.

Now, with that submission and in view of the
record, it is my duty very briefly to examine the
‘ evidence which has actually been given, and I will
preface the examination with this remark. This is a
case where in some instances what is called a half-truth
implies an untruth : e.g. there was a detention camp
where people ^vere taken if they were guilty of acts of
insubordination or any other act contrary to the discip-
line of an army. Having been takeii there, there v/as
no doubt a certain amount of tasks and fatigues they
were asked to do. That is perfectly true, but that hav-
ing been done, the man wants to make a martyrdom
of it. I will tell you why. He says he was taken there
and he was asked to join the T.N. A. It is all, I submit,
embroidery of the case, and I will ask the Court to ex-
amine that evidence in that light, and in one or two
instances l shall be able to show that reluctantly he
almost admitted the ease I put to him, that he was sent
"there because he was guilty of insubordination. People
very picturesquely said they were asked to pick up one
■end of a pole and every time a man followed them or hit
them — I think the very exaggeration defeated its own
purpose. ‘ I do not think any Court, wdll believe
rsuch an absurd story. True, he was taken there, and no
^doubt he had to do a certain amount of fatigue; No
'doubt it may be that a non-commissioned officer
thought it was below his dignity to pick , up things
which were necessary. In fact you might remember
with what amount of reluctanop the witnesses gave the

kind of evidence before the Court.— I would recall a pict--
ure of one of the witnesses when I «feold him that this-,
was onty for' the purposes of manure and there was the-
evidence of a garden, — ^it almost taxed one’s patience
to be able to get out of him that evidence, and get him.
to admit those facts; and even then he kept on saying
“Oh, there was a road there and in between there was^
something and if you call it a garden it is wrong and so
The fact remains that the witness was taken

on.

there for some act of insubordination; he was put to a
certain amount of task, but then in order to glorify him-
self as a martyr, he now comes forward before this Court
and says “I was taken there.hecause I did not join the
I.N.A.” And when I cross-examine him as to %vhat
particular position he held with ■ particular distinction,
and what distinguished career he had, and he ultimate-
ly collapses and admits he was an ordinary soldier. To
think therefore that stories of this kind would pass*
muster before a Court composed of men of affairs and
experience, I submit, will not do*

I call attention first to Wolit Bahadur, P. W. 14.
The kind of picture he gave— this method of carrying
baskets at the eiid of a pole — I do. not suppose it is any
great innovation or torture, unknown in India. The-
way in which he described it, and if he was not giving
evidence before men of experience in this country, was-
almost insulting to one’s intelligence. After all it is a
commom method of carrying a load on bars with a man.
at each end ; and if he objects to carrying a load like
that I am very sorry for him; but l am afraid he has to
labour, and if he has to work, -he has to work ; and the-
more we learn to do manual labouisp»I think, the better-
for men of my country.

And then he said— it was a ridiculous story —
he carried out the order and picked up the-
cow dung. There came a road. There were six men
who stood just for the purpose of i giving a stroke as;
he lifted the load. That I submit defeats itselL

109 ^

In cross- examination — that is where I wish to
•call attention to a few passages — this is what he says :
•"‘He said that we had now fallen from the English
into the Japanese hands and we have to carry out
•their orders and do* their fatigues. He told us that
-the British had run away and left us there. He said
that our home was in India and we have to join with
other Indians to fight for India. He also said that
for this reason we should join the I. TST. A. He also
said that the I. N. A, was being formed to set
India free. He said that for this reason we should
join the I. N. A. About one or two men said that they
did not know anything about the I.N. A. and they
were not going to join it. At that time we did not
know what this L N. A. was, I know Jamadar
Til Bahadur Adhikari.” This is a very important
thing. They are the people who are said to have come
In this party to attack this gentleman and his friends
in order that they may be coerced to join the I. A.‘
It would he fortunate if one can think a little in
advance. He admitted that every single one of them
who took part in this raid to induce this gentlemau
and his friends to join the 1. N. A. were all meir
respected in their regiment and respected in the parts
of the country from which they came. If he had
only realised what it involved, he would probably not
iave admitted it, “I came to know that the I. N. A.,
was being formed. I know Jamadar Til Bahadur
Adhikari, Jamadar Puran Singh Kha was was a man
who was respected by our unit and so was Jamadar Til
Bahadur Adhikari. Jamadar Til Bahadur delivered
only one lecture at which I was present. He also told
us about the ohje^ of the I. K A. which was
the same as Puran Singh had told us. When
Til Bahadur delivered the lecture there were about
fiOO men present.’* He admitted to me that they were
being asked in the ordinary course to join the I, N. A.,
asked by people whom he admitted to be respectable
and the point m asking for the admission i'^ this, that,
those were among the people who came armed with a
view to attack these innocent men in order that they

may Join the I, A. I make a present of that kind
‘of story for yonr acceptance.

Then, Sir, comes in very common parlance the
•cat out of the bag. “Those who did not join the
I. N. A- were required to do fatigues for the Japanese.
Those who joined the I. N. A. were not required to do
fatigues for the Japanese.” ’

Prosecution Counsel : I am afraid my teamed
friend is under a misapprehension. He gave no names.

Defence Counsel : In his examination in chief
he gave the names of the people who formed the party
of attackers. It comes in cross-examination.

Prosecution Counsel: He does not say that
these were the people who came to assault Mm. I
know my learned friend put those names to him. No
•such questions were asked that thesf were the people
who were in the firing party.

'Judge Advocate : That certainly was not said,
Mr. Desai. '

Sri Desai : The point of the argument
will be perceived, name or no name. “ Those who did
not join the I.N.A. were required to do fatigue for the
f Japanese. There was dispute when we refused to do
atigue duties for the Japanese. The leaderB whom I
have named told us not to object to the fatigue.
In spite of their persuasion some of iis did not
obey. We reported that we will do fatigues
for the Japanese but we have nothing to do
with the I.N.A, The guard was sent because
some of us did not obey”. That is the point. The
point is that it was not because they were to be
persuaded to join the. I. N. A, that the guard was
sent. On his own admission they did not obey to
do the task they . were sent on and

ttet destroys the whole of that evidence, name or no
name. His whole ptirpose was that these people came
on their own with a view jnst to educate them, because
they would not join the I. N. A. If my learned friend
will follow the process of cross-examination and the*
admission made by Wolit Bahadur I only point
out that it was up to the witness to say that they were
not in the firing-party.

Judge Advocate : It is you here who is in the
wrong, You have said that these men were in the
firing party, whereas it was pointed out that they
were not.

gri Desai : There is the evidence in chieL
I took the names from the summary of evidence.
Because of that ruling the names were not allowed to
be given. Whether the witness proved or failed to
prove ' that the attack took place, because they would
not join the I. W. A. that is the true issue, and
remembering that to be the true issue, I beg leave to
read where I left, and that is this : There was a

dispute when we refused to do fatigue duties for the
Japanese. The leaders whom I have named told its
not to object to do fatigue. In spite of their per-
suasion some of us did not obey. We reported that
we will do fatigues for the Japanese hut we have
nothing to . do with the I. N. A. The guard was sent
(that is the material point) because some of us’ did not
obey.’' You cannot get out of that. In other words
the story that the guard was sent with a view to shoot
them because they did not join the I. N. A., is entirely
destroyed by . this evidence. ^‘The guard was sent
because some of us did not obey. The guard came to
seize the ring-leaders.’’ That is precisely my point. I
said they were aU guilty of oiie or other offence
against discipline, and hence action was taken against
them, and this is the best illustration. Of course
people get warned : after one man has been cross-
examined you may not get the same type of actual

admission. But here you have the clearest possible
admission, the negation, the complete negation that
any attack was made on them, because they did not
join the I. N. A. Of course they always repeat like
parrots, when it becomes necessary : that is what
happens. But occasionally there are lapses. “ The
guard was sent because some of us did not obey. The
guard came to arrest the ring-leaders. We were about
550 men. Some of the men had a dispute with the
gua#d. The guard stopped us from doing this 4nd

- -then.fired in the air ” i^Tiat possible course forsooth-

it was sent for the purpose of asking them to join the
1. 3Sr. A. and they should have fired in the air ! The
whole point is that these were recalcitrants, a disobedient
crowd. They were a.sked to surrender As a warning
they fired in the air. They would not obey. Of
course the trouble took place. “When we did not
obey the order of the guard, they fired. The guard did
not prevent us from doing fatigue but they spoke to us
about I. N. A. which we did not obey.” All this
rubbish is difficult to understand. “ First they fired in
the air, and when we did not obey ultimately they
fired at us. About two or three m<^n were injured
attef the firing. Then we pursued the guard. The
dispute between the guard and ourselves was that we
psented the appearance of the guard during the
i^ture time.” I do not know what it means.
VVnatever that means, they know better. As l said here
It IS a complete demolition and the best illustration
of now the false is mixed up with the true. There is
no doubt that there was a scuffle. That is not denied
But they want to annex the scuffle to sofne-
thing else. That is a piece with all the evidence
with which I am familiar. You get hold of a known
tact which IS not disputed, and then put it on to
somethi^ else. My submission to the Court is that
this evidence alone is sufficient to discredit the kind of
evidence the Government has put forward with a view
to show that atrocities were inflicted for the pumose
ofjoimngthel.N.A. As to the tortures, they weS

of two kinds. Eega-rding one, I kave got definitely
out of the mouth of the witness himself that they
objected to the fatigue. They were persuaded not
to do it. The very leaders whom they respected,
persuaded them not to object to do fatigue. They
were again asked to surrender their ring-leaders.
These people would not. They fired in the air and ulti-
mately they fired at us. Three people died and
there were 550 of them. Such evidence, can my
earned friend or any gentleman in his very high
position eve*’ place before the Court, name or no name?

Prosecution Counsel : I only corrected a state-
ment which was not Justified by the record.

Sri Besai : I admit that I was in the
wrong. I say the point of the argument is really
this that the witness who came to swear false to the
fact that the party was sent armed with a view to
fire at them in order to compel them to join the
I. N. A., here stands on his own evidence self- con-
demned. He admits that the purpose was different.
The occasion was different, and that disobedience was
the only cause. My case is that the cases which they
have selected are cases of a similar kind where people
undoubtedly were dealt with for breach of discipline,
but which they now attribute to a false cause, namely,
their refusal to join the I. N. A. The next is the
case of Muhammad Hayat. That is the case in which
we said that because they killed some cows, a quarrel
arose and hence a sGufiae. It is true a scuffle took
place. The question is — was it with a view to compel
them to join the l. N. A. That is where I say they get
hold of an admitted event, or a more or less admitted
event, and annex it to a false cause. He said :

‘‘The Camp Commandant was Captain
M. Z. Kyani, who was succeeded by Col.

Shah Nawaz Khan. I heard Col. Shah
Nawaz Khan lecturing to the camp. I was

114

not present at the lectoe he delivered in the
camp, but I was present at the lecture he
delivered in the mosqtie. He said that
Sikhs and Hindus have already volunteered,
and that the Mussulmans should also join.
He said: ‘ Muslims must join the I. N, A.
because when the Hindus and Sildis go, they
will trouble you in your homes in India. ^
He did nbt threaten us with force but he said
that we ought to join the I. N. A. He did
not say that he only wanted sincere men.
He said H will not give any sort of trouble
to you, but you should volunteer, I want
true volunteer's. After Dua Khair, we said
that we will not join the I.N.A. We meant
by that that none of us who were present
there had a right to join the I.N.A. There
was no charge against the men of my unit of
having committed theft of seven cows belong-
ing to civilians, and of having slaughtered and
eaten them. I deny that. That charge is a
lie and that the cows were eaten is also a lie.

I am shown my additional statement in the
summary of evidence. I admit that I said
in the summary of evidence that Major Aziz
Ahmad told us that we were to go to the
concentration camp because we had killed a

cow.’’

That was at the time they were sent. Re-
member what was the contemporaneous statement
made. I want you to remember that. The Court
would have no doubt that that was the real cause of
the dispute, and that joining the I.N.A. or not joining
the I.N.A. was not the cause.

‘‘No skins or bones were fotind, and no investi:
gation was made. I never volunteered for
the I.N.A. The Badadari camp was a mixed
camp of volunteers and non- volunteers in

Jialy 194:2. Neesoon camp was also a mixed
camp ...... There was no difference in rations

for the volunteers and non- volunteers* In
July 1942 there was no separate treatment for
volunteers in the Badadari camp, I was
carrying on anti-I.N. A. propaganda. There
was no charge against me of killing or stea^h
ing a cow when I was removed from the
Badadari camp to the concentration camp.

Aziz Ahmad never told us that we were being
sent to the concentration camp because we
had killed a cow. I am again shown my
statement in the summary of evidence. I
signed my statement. It was read over to
me. I made this statement about Major
Aziz Ahmad having told us that we were
all cto go to the concentration camp
because we had killed a cow.”

In other words, at the time when he was taken,
it was proved from his own mouth that he was
definitely told that the reason for his being sent was
the killing of the cow.

* ‘ On the day I went to the concentration camp
there were approximately 60 or 70 men
there. .... .1 said that after two or three days
men of my unit were sent away from the con-
centration camp. I and 11 other men were
kept there. After our people went away, there
were approximately 60 or 70 people left. They
were all non- volunteers. I am talking of the
month of July 1942.”

Then comes the most tell-tale thing which any
man of common-sens© wUl understand :

‘T was released from the concentration camp
after 21 days because I had become very
weak,”

The whole point is this. Any man reading
between the lines will be able to see that these people

116

were taken to the concentration camp because they
were charged with having stolen and killed a cow*
He himself admits that it was a charge made at
the time. Major Aziz Ahmad said ‘you have to go to
the camp, because this is the charge against you
After investigation, he was released after 21 days. Is
that the real story, or what he now says is the real
story? It does not, show that they were oppressed
or coerced to join the I. N. A. ;

There is one ordinary canon of reasoning and
common sense. Is the Court to accept the story he
said at that time or is it to accept the story told now?

I submit that at that time nobody imagined that any-
body was going to make anything out of this incident
for the trial against some people in future. The
question is, which of the two stories is likely to be
true, and I respectfully submit to the Court that there
can be only one conclusion. The story he told then
is the true story, and not the story he tells now. That
is my submission with respect to this witness.

The next witness I take is Ahmad Nawaz,
r. W. 10. Every man has to undergo some sort of
punishment for an offence. This witness is taking
the story as it occured, and adding to it so as to make
out that what was done to him was a punishment to
induce him to join the I. N. A. The only grievance of
this gentleman is that he was| asked to carry cow- dung.
It was not after ail such a serious punishment as he
tried to make out. When I asked Mm whether he was
asked to mix cow-dung with soda-ash, he said that
in his part of the country they did not do so.
The time has not yet come in this country
tor the use of every kind of mineral manure, of
any other kind of manure except cow-dung,

I asked him whether it was not intended to be used
for the purpose^ of manuring the garden, and it
took a very long time before we could get anything
at all from this witness. The demeanour of this

117

witness, and Ms b^feavioiuir to tho Court stands
condemned.

I am now reading part of the cross-examination:

do not fenow what the cow dung was taken
for. I only know we were made to take it as
a punishmont. W© stacked the cow-dung near
a road in the camp and on both sides of the
road was the gai'den. We were never told to
powder the cow-dung for manure. It is cor-
rect that I said that we xnixed ash with the
cow-dung but I do not know for what purpose
it was used. I only did it as a punishment/’

To this man everything is a punishment. When
this gentleman was asked to mix some soda- ash with co w
dung for manure, he thinks it is by way of punishment.
He is indignant when he is asked to do something and
thinks he was asked to do it as a punishment; He
says :

“As a farmer, in our own home, we only use
cow-dung as manure and we do not mix ash ,
with it. Only for three hours on the first day
I did this work of carrying cow-dung and
stacking it near the garden. It was stacked
at a distance of abont . 10. or 12 yards from
the garden. For the remaining five days we
were digging and levelling earth and prepar-
ing garden plots/’

When you come to analyse the facts, the indigo
nity this witness comes to nothing. He was asked
to do the ordinary work of preparing garden beds for
the vegetable garden and mixing some manure. So
for as the morning is ooncer ned, it only lasted three
hours of his life time. If this is what is called an
struqtly, I submit to the Court, it is a ridiculous type
of strucity. A manis asked, to make beds in a garden

118

and prepare some manure, and -he imagines it to be
punishment. He may think so, but' it is for the Cour^
to say whether it is so. Does the Court believe tha^
it was an ordinary piece of work, or it was an oppres“
sion, coercive methods, and I do not know w^hat othe^
language ^ used to describe it. Is it a torture to pre*
pare beds and to prepare manure? I submit with great
respect it is a ridiculous kind of evidence which is
put forward as an item of torture, and for what pur-
pose? — for the purpose of maldng this gentleman join
theLN.A.l Does this stand to reason and common
sense ? I submit “with great respect, that in spite of
the picturesque language used,' the Court will not
accept the version of the witness. It is a ridiculous
thing. He was asked to do ordinary fatigue. This
is legitimate work which ought to have been done
willingly and it is ridiculous to suggest that this was a
kind of torture used to induce or coerce the witness
to join the I.H.A. That, Sirs, is the evidence of
Ahmad Nawaz.

Then, take the next witness, Havildar Muham-
mad Sarwar. He said, ‘‘Everybody refused to join the
I.N.A, The Jamadar and Subedar were armed with
pistols and they took them out and started firing on us,
and ordered the guard also to fire on us. The guard
consisted of approximately li men They started
firing. Two of us were killed......... Everybody said

Allah-o-Akbar.” Now, I will read from the cross-
examination of this gentleman. He said : ‘T was for
three weeks in No. 4 hospital. It was a very big hospital.
There wer e patients of all kinds there, i was taken to
the hospi '^al I do not know^ wdio took me, because I

was unconscious. There w'as an officer to whom I

said that I was willing to join the I.N A. The only
force that made me join the I.N.A. was that I wanted
to escape this had treatment and bad food. When I
joined the I.N.A,, I came to know that they were
trying to free India.’’ And this is the gentleman who
says that there was a regular firing in order to make

11 ^

him join the I.N,A He goes on : ‘‘I knew I was expect-
ed to go and fight. I knew it was a question of life
and death. I thought that death was better than these
troubles. I had no faith that they would set India
free. I had every faith that if I went to the front, I
might be able to go to the other side, because we had
so many hardships otherwise. At the place where we
were first, there were numerous other peo;^e besides
the 300. I do not know the Camp Commander’s name.
The Unit Commander was Lt. Purshotam Das. That
was the Japanese Prisoners of War Camp • We were
split up into parties for the purpose of fatigues. On
the day prior to the firing accident, we were not divided
into parties of 323 for fatigue purposes. We were not
asked to from a party of 323 men. We were not given
an order. I do not know anything about being asked
to surrender our leaders. I never heard of it. It is
not true that Lt. Purshotam Das advised us not to'
resist. In the party which came to the Camp
there was one * Muhammedan Jamadar. He was
second-in-command of the guard. There was a
scufile between the men of my unit and
the guard after the firing had taken place.
Only one man of the guard was killed. The guard
consisted of about 300. The name of the guard who
was killed was Sardar Singh, who belonged to the
Kapiirthala Regiment. ” That will show who attacked
first. I leave it to you, Gentlemen, to judge who
was the attacker and who was the attacked. And
remember this that they were in a party of a few
hundred, Avhereas the guard consisted, as he puts it,,
of 300 men, Because we refused to join the I. N. A.,,
they started firing. ” That is the picture which we
are asked to accept. I submit with very great respect
that the story is a most incredible story. There was
no conversation and they at once started firing 1

Now, Sirs, that is the story which is presented
to you for acceptance, and I ask the Court not to
accept it because it is a ridiculous story. What is the

idea' of 'dnng at the men whom they ask to joiii the
I. N. A. ? What do you gain by it ? You gain this
kind of soldiers with a view to fight ! My submission
to the Court is that there was this scuffle which he
reluctantly admits, and evidently they were the first
attackers. But they have employed a little story by
means of wjiich they say that there was firing on them.
If the Counsel thinks that he can walk away with this
story, I submit he is mistaken. But when you come to
torture, I ask, is it supposed to be a torture ? It was
an ordinary fatigue duty. In this connection, I would
like to call the attention of the Court to the Geneva
Conventions, Articles 27 to 34, with reference to the
work of the prisoners of war on. page 298. I am talking
of 1929- ‘ * They should be kept according to their

rank and if they are physically fit they may be
employed by private individuals, but the captors
must assume entire responsibility for their main-
tenance.

Prosecution Counsel : I am afraid I must inter-
rupt. The evidence is not as my learned friend reads
it. The evidence is not that the guard was killed
first.

Sri Desai : What he said was : ‘^The name of the
guard who was killed was Sardara Singh. There was
no other member of the guard who died before Sardara
Singh was killed.” I had not the’ least doubt about
it.

The point that I. submit to the Court is this.
The witnesses fall into three types of classes. The
first category belongs to the cow-killing incident. The
second that the incident was with reference to refusal
to do fatigues. The third relates to the incident of
refusing to form parties for fatigues as required by
the Japanese, whose prisoners they were. As a result
of these three incidents, certain accidents occurred. I
submit to the Court that the Government had definitely

failed to prove any torture for the purpo^^ of
jwning the I.N.A. Each of these accideats is attribut*
able in two cases almost—to an admitted fact. In
OTe case it is due to the form which the attack took.
00 ith reference to the other witnesses, the less said the
better. All that they have said was that they were
asked to do certain duties which they thought was an
indignityj which they were asked to do, which, I sub-
mit, is ordinary decent labour. I know many men
of higher rank who do gardening as a matter of
honourable occupation, and as a change of occupation
from ordinary work. What these gentlemen were
really asked to do was gardening, and they seriously
come here and say what an indignity it was to ask a
soldier to do gardening. iVnd that is why he refused
to Join the I.’N.A. The Counsel has entirely failed to
prove what he set out to prove, and I feel the Court
snould hold if it were necessary— according to my
submission it is not neceasary at all — that it has not
been proved, apart from what is read or stated or
alleged, beyond any reasonable doubt, that any torture
was inflicted in order to join the I. N. A. That, Sir, is
my submission on that count.

That is all that I wish to say about the evidence
on the subject of atrocities alleged to have been
committed on these men to join the I.N.A. With
reference to the point that I mentioned in the morning
as regards cases which might possibly be relied on, I
will give yoii a list of the three oases which may be
relied upon and givejmu my remarks on them. Before
that I wish to make a submission. I will make a
^quest at a later stage but I wish to mentiort to the
Court in so far as any new authority is cited by my
learned friend I do not w^ant a general right of reply
but I will ask the Court in the end that on any new
law that may be cited I may be allowed to give a reply
because I could have no opportunity even by anticipa-
tion of doing it. I will make that request more formally
towards the end. The three cases which may be relied

upon are Regiifi^ vrg. Lynoh (1903) 1 King’s Bemoh
Regina vrs. Jaegrae (1907) Appeal Cases p. 346 and
Regina vrs. Casement (1917) 1 King’s Bench. I do not
wish to address you as if you were a high court, and
therefore what I will do is this. There are two points
which distinguish these oases which I will briefly state.
They are cases of an individual being charged under
the English law for an act of treason ; they were not,
cases of men who were members of an organised army
and of an organised Government. The second distin*
guishing ground is that in these cases there was no
question of what I have submitted shortly as double
allegiance. Therefore my submission will be that if
these cases are relied upon this is the answer that I
have got with reference to them. I will now go on with
the regular trend of my argument.

The next point which I have to deal with before
the Court is the evidence relating to the charges of
murder, hut I will take them all together without
attempting to distinguish them. But I distinguish
them under two heads ; One is with reference to
the four persons alleged to have been shot on one
occasion and Muhammad Husain, the person shot on
the second occasion. I will first briefly state the case
as I desire to present to the Court, and then deal with
the evidence. It is a matter in which with due
submission I probably will call attention in some
greater detail to the evidence of three or four witnesses.
As to the others, I will only make a submission
as to what they said.

The position with reference to that is this. As
regards the four persons there is a crime report and
therefore up to the point of punishment there is evi-
dence before the Court. As regards Muhammad
Husain there is no crime report. In fact as regards
Muhammad Husain there is no document whatever
relating either to the sentence being passed or the
sentence being carried out. Further, there is not even

a easiialty. record iii either case, that I find on the
record. As to Muhammad Husain the only answer
given hy oneof the witnesses as to why a casualty report
was not made was that they were moving from Popa
that day, and then when I further cross- examinaed
him— which you will find in the cross-examination
when I come to it^ — ^he has given no adequate explana-
tion for the absence of the casualty report. There i&
this further evidence— I am only anticipating it — ^that
in the case of Muhammad Husain there are three
persons who are alleged to have shot, — Jagiri Earn
and two others, whom Jagiri Earn himself did not
know. I do not wish to enter into details at this
moment except when I read it, but I wish to point out
the salient features. It is said in the evidence that
Muhammad Husain had three shots on his heart or
near thereabout. It is further said in the evidence—
he said this — that there was a tear in the shirt ; and
further in answer to the court, which is a most mate-
rial point, he said there was no blood of any kind or
sort. That is the state of evidence with reference to
Muhammad Husain,

And now I will deal with the two sets of cases.
There is one other ruling which I should have mentioned
and that is that there is in evidence before the Court
that Lt. Dhillon who is said to have signed and
watched the sentence carried out was in a state of
complete collapse of health and on that the document
before the Court is Exhibit WV. And the date of
that document is 6th March 1945, the date on which
it is alleged this execution was carried out. I am
reading the relevant part of that document which is
at the bottom.

Jai Hind — I think most of your queries
have been answered in this order.
Others I will answer when I come tomorrow.

I ought tO' have come today but last night I
went to check certain defences and on my

; 124

^ arrival back I felt very weak ^ so weak that
I have never felt before thronghont my life.
Major Shankar gave me an injection today
thongh for a complete course I must get 12
here when there are none available. I will
get one tomorrow. ”

My case is that so far as carrying out the
sentence on the four persons is concerned, though
in fact the order was passed, it was never carried out.
hTot only that, but I will be able to point out from the
evidence on record that there are many other similar
instances, sworn to and admitted by the witnesses for
the Prosecution. That is in outline why I submit that
the case in so far as the execution of the sentence is con-
cerned, is not proved. I may go a little farther and state
to the Court that there is no presumption that because
sentences were passed they were therefore carried out.
The charge of murder has got to be proved by
proving completely what is called the corpus delicti of
that particular person. And I will say that if there is
a reasonable doubt in your mind that the Prosecution
hasfailed to prove the actuM execution of the sentence,
my clients are entitled to the benefit of that doubt.

That is the position with reference to the
executions. There are four witnesses with reference
to Muhammad Husain. As regards the first witness
Havildar Ghulam Muhammad, the evidence need not
be read to the Court because all that he says is that
he was brought up before Capt. Shah Nawaz,
which in fact is not denied. There is this in
Ohulam Muhammad’s evidence :

‘T know Havildar " Ganga Sarah, The First
Battalion Commander reported that he
(Ganga Saran) had refused to obey his orders.

He was a sub-officer in the I.N. A. He was
produced before Col. Sahgal for this offence
and was tried and sentenced to death. He
was afterwards pardoned and released.”

Havildar Gauga Saran himself in hi? cross-
examination has admitted .that as a fact.

The next witness is Sepoy Allah Ditta (P.W. 24)
He deals with the earlier part of the story, namely
his intention to desert. This is what he says :

. '‘Muhamfnad Hussain said ‘I had a few
difficulties and therefore I intended to
desert’. But ho inquiries were made into
his complaints. Muhammad Hussain was
told by Col. Shah Nawaz : * You are sentenc-
ed to death by shooting because you intended
to dessert yourself ai>d were persuading others
to do the same. Therefore you are not
pardoned.’ I heard Col. Shah Nawaz
say : , “Put off the case to the Regimental
Commander”. (Note by Court : Witness used
the words in English). Then we all three of
us were sent out. I recognise Col.
Shah Nawaz Khan as an accused before the
Court. We waited there for ten minutes
and were brought back to Brigade Head-
quarters. Muhammad Hussain, Jagiri Ram
and myself came together back to Brigade
Headquarters. Muhammad Hussain and my-
self were put back in the same cell in which
we were before and Khazin Shah took away
Jagiri Ram. The same day at about 5 p.m.
Sardar Muhammad, Adjutant of our Battalion
and Aya Singh took away Muhammad Hussain.

I have never seen Muhammad Hussain since
then.”

Then, Sir, in cross-examination he said :

“No decision was arrived at either in my case
or in the ease of Jagiri Ram.”

The Court, will remember that there were three
people, and it is common ground that as regards
two the sentence was hot carried out.

“It is true that all that Col. Shah Nawaz Khan
said was : “You deserx^e to be shot.'' CoL
Shah Nawaz Khan said that rebels like yon
will be sentenced to death by shooting.

Col- Shah Nawaz Khan told Muhammad
Hnssaiii : “Yon yonrse.f wanted to escape;
secondly, yon have tried to persuade others
to escape; therefore,, you are a rebel to the
I.N.A. and sentenced to death by shooting."

I saw Col. Shah Nawaz Khan write something
on the crime report. How could I read the
crime report without picking it up from the
table, I do not understand English. "

I come to the part of the story which in itself
has not the same importance as what it indicates,
showing that the witness w-as a completely factual
witness. The man does not knoAv English and yet he
says “he was waiting a crime report", and the object
of the cross-examination is to showr that he told a set
storywhich he himself could not Lave possibly seen
or done, and that is the kind of witness he is. That
is then object of that part of the cross-exami-
nation.

“ I saw Col. Shah Naw^az Khan write some-
thing on the crime report."

The man says he does not know w’^hat is crime,
but he was told what is a crime report. Yet he is
asked to tell a set story that there was a crime report
which CoL Shah Nawaz Khan was actually writing,
because he was called upon to prove that it was a
crime report and sentence was written on it.

“ I saw CoL Shah Nawaz Khan write some-
thing on, the crime report. How could I read
the crime report, without picking it up from
the table ? , I do not understand English.

||||»

I do not know what- he wrote and where, be-
cause I do not know English and i was not
reading the crime report at that time.”

And the only re-examination is :

The crime reports were lying on the table
and Col. Shah Nawaz Khan read them out as
he spoke to us individually. He wrote on the
crime report which had already been drawn

That is his part of the story. Then we come
to the actual evidence of persons by whom sentence
is said to be carried out,— Jagiri Ram. You have seen
him in the witness box. He is in the Nursing De-
partment. He admitted to the Court that he had
never handled a gun in his life, or a ride, or any shoot-
ing instrument. But in order to give the colour of
truth, Jagiri Ram is made to say this : “ I was unwill-
ing ; I do not know how to shoot ; I have never handled
a shooting instrument, but a gun was put on my
•shoulder...”. I ask you, Sirs, to give me the benefit
•of any description on his part ra^ther than attempt
to construct the story for him as if he did so. Then
he put the gun here and the trigger was pulled and it
■seems, that this, untutored rifleman was extraordinarily
-accurate, that along with the others all the three
shots lodged in the chest of the deceased. Sirs, it
will be for you to judge the story. I am going to
:read out only that part of it which is material :

^Tknew Muhammad Hussain and Allah Ditta.
Muhammad Hussain, myself and a Garhwali
talked about escape when we were in Popa
Hil area. While we were talking of escape
Khafih Shah sent an orderly and ordered us
to report to Battalion Headquarters.

'.^ 28 '

Muhammad Hussain said that he had men-
tioned to Jagiri Ram and Alla Bitta jokingly
about an escape. Khajin Shah questioned me
and asked if they mentioned this jokingly.
I replied that I had no proof of his inten-
tion to escape, but he fnentioned it jokingly
to me. Mohd. Hussain and myself were
tied to a tree near the Battalion Head-
■quarters, while Khajin Shah was questioning
tis. Khajin Shah questioned me as to who
Tvas trying to escape and I said that I did
not .know the name of any one who was
trying to escape. Then Mohd. Husssain
was questioned. He also said that he did
not know anything. After sunset Khajin
•Bhah took Mohd. Hussain and myself to
Brigade Headquarters. 'When I was taken
to Brigade Headquarters, Mohd. Hussain,
Khajin Shah and one sentry were with me.
Brigade Headquarters were near a nullah.
■On arrival at Brigade Headquarters, Khajin
■Shah went to a telephone and after that Alla
Bitta also arrived at the nullah. After that
all three of us, Mohd. Hussaiu, Alla Bitta and
myselt- were put in the Quarter Guard and
•our hands were tied. On the following day,
we were brought before Cbl. Sahgal. Col.
Sahgal questioned me as to whether I intend-
ed to escape. I said no, I did not intend
■to escape. Buring this conversation with
■Col. Sahgal, other people present were
Major Negi and Khajin Shah. Col. Sahgal
asked me if I had reported to any one after
Mohd. Hussain had mentioned to me about
escape. I said I did not know anything
about Mohd. Hussain, and I did not reply to
any N. C. 0. I worked with my Medical
Officer. Then we cams Gut of the room and
went back to the Quarter Guard. Then Lt

each one of us a beating and said that he
would release ns if we would tell him the
names of the people who intended to esca|)e.

I continued to say that I did not know. Next
day we were taken to Divisional Commander
Shah Nawaz Khan, We were accompanied
by Major Negi, Ediajin Shah and a sentry.

All three of us, myself { J agiri Ram) , Alla Ditta
and Mohd. Hnssain, were lined up before the*
Divisional Commander. The Divisional Com-
mander asked me to speak the truth
whether I intended to escape. I said no
intend to escape, Capt. Sha.h Nawaz Khan
asked us why we did not report the matter.

I said that I did not know anything about
it, and I did nof intend to escape. He asked
if there was any officer or N. C. 0. near
me. I said no, I was working with
my medical officer. Then Captain'* Shah
Nawaz Khan asked Alia Ditta : When

Muhammad Hussain had talked to you about
escaping, did you report to any one Allah
Ditta said: ‘VI do hot know anything about
Mohd. Hussain’s escape ; I thought it was a.
joke, I do not know anything about it. ”
Captain Shah Nawaz Khan then said to AUah
Ditta : ‘‘ You are an N. C. 0. Why did you
not report Alla Ditta begseed his pardon ,
and said that he did not know anything
about Mohd. Hussain. Then Capt. Shah
Nawaz Khan questioned Mohd. Hussain, and
Mohd. Hussain replied that he was in difficult-
ies and that he intended to escape and ask-
ed to be forgiven, Capt. Shah Nawaz Khan
then told him : “ You are not for our country;
you are our enei^iy. I will give you death
by shooting, ’’ Then Mohd. Husain asked for
forgivness, and said he was prepared to go
anywhere he was ordered, Capt. Shah
Nawaz said nothing to this. ”

The whole importance of the question
whether ra fact any sentence was actually prcnounced-
But, whether or not it was * pronouncedf, the ultimate
issue is, whether it was carried out; Bike the case of
the other two co-accused — Jagiri Ram and the other
man — he said that nothing was decided, and

all three of us were then sent out, and we
were taken to Brigade Headquarters accom-

hen comes the next material part of the

story

Khazin Shah told me, * You will shoot
Mohd. Hussain, because you are one of the
men who were trying to escape with himh I
declined and said I will not shoot

1 have ^ understood many psycholo^
problems but this particular one is curious, nan
that a man who d )es not know hnw. tn cKrki-k-f.

cannot shoot, is ihlade to shoot jnst ,a» a sort of
punishment, which I do not understand, and which
I trust you will not be able to understand even if you
set a problem to yourself.

‘‘Khazin Shah told me: “You will shoot
Muhammad Hussain, because you are one of
the men who were trying to escape, with
him.” I declined and said I will not shoot
him and that I did not know how to fire a
rifle. Khazin Shah told nie again: “If you do
not shoot Muhammad Hussain, you will be
shot yourself. I still refused and he drew his
pistol.”

I can only express my inability to understand
this particular psychology except a very foolish
invention. . -

I refused again and Aya Singh got hold of a
rifle* He put the rifle to my shoulder and
put my finger round the trigger. Khazin
Shah told Aya Singh to gi\"e the order to fire.
There were three of us, one Singh, one Tamil
and myself. Mohd. Hussain was blindfolded
by Aya Singh. He was made to sit on the
* ground with his back against a tree stump
and his hands were tied behind his back,

Aya Singh ordered me to fire and ail three
fired. Muhammed Hussain died there.
Khazin Shah ordered Aya Singh to give the
order to fir© and Aya Singh gave it. Khazin
Shah told me to report to my company and
not to come to the Battalion Headquarters.
That, evening we marched off to Logyi. Then
we stayed at Logyi two oj; three days. Then
I ’^eht over to the British.”

The cross-examination is further continued :

“ After I^had made the statement it was read
over to me and I was asked whether it was

the correct version of mj statement and I
said: “Yes, it was”. I was again shown
my statement day before yesterday and I
was asked if the contents were correct and
I said : “Yes.” It was translated to me in
Hindustani and read over to me, and I also
repeated my statement once again and they
both tallied. 1 have had no training in the
use of weapons. I Joined the army, I worked
as a servant and a labourer. On joining hos-
pital, I was trained in the work of bandaging
patients and making their beds. I had
nothing to do with the fighting part of the
army. Except when the patients were sent
to the hospital I had nothing to do with the
men of the fighting units. ” .........

The point which I wish to make is that not one of
the persons is able to identify any of them by even the
remotest possible description, and you cannot prove the
death of “A” by saying that I saw somebody shoot
someone whom I cannot identify. Continuing he said :

“Mohd. Husain and the Garhwali I have
referred to were members of the fighting units.
At the time of the conversation they were
not sick. I did not know them before the
conversation, but they were living in the same
company. I had no talk with them before,
but when they came to my company I was
in company headquarter^'^. When this conver-
sation took place I was in Popa Camp. I had
neV-er been to Burma before. Before joining
the I.K.A., we were given very hard fatigues
by the Japanese in connection with the load-
ing of coal at the ports day and night I do

not know the name of the Garhwali to whom
I have referred.”

■■ i , .

The test is whether the other alleged conspira-
tors were known to him.

“ I know he was a Garhwali because he lived
with us and he spoke Garhwali. I had never
talked either to the Garhwali or to Muhammad
Husain before the day Mohd. Husain joined
company headquarters, I had never spoken
to the Garhwali before that day in the iiuilah ;
and from that day’s conversation 1 say
that he was a Garhwali. I do not know' any
language or dialect beyond the dialect which
I speak.

I came to know Mohammad Husain in com-
pany. He used to live with me at head-
quarters. He used to sit in my company. I
know he was a Mohammadan, I do not know
' anything jmore about him. He used to speak
in Punjabi with me. He used to live with
me, surely I knew him. I cannot give a long
description of him except his physical descrip-
tion, I do not know anything else about him.

It was by chance that Mohd. Husain and I
got together and the Garhwali arrived in the
* meantime.

When I was arrested I said that I never
intended to run away because I would have
been also shot otherwise. I knew Lt. Aya
Singh because he was in my company. 1 know
he is alive. I saw him in Jigargacha and
Chittagong. The last time I saw him w'as in
Chittagong where he arrived two or three day»
after my arrival there in about May last.

‘‘ I saw Oapt. Shah Nawaz Khan at Divi-
sional Headquarters. There 'vtere other
orderlies and sepoys there. I do not remember
having seen any officers other than Capt'. Shah

m ^

JSTawaz Khan. I do not know the English word

crime I. know the word report ” in the
words ** crime report which are Avritten on
a piece of paper now shown to me. There was
no need for anybody to teach me the meaning
of crime report when I was about to be
produced. ’’

I put it to him to asoertaih if he understands
the explanation. There cannot be any other
explanation except^ tutoring.

I was told that a crime report would be
put up against me and that we three men
would be brought before Capt. Shah Nawaz
Khan. No announcement was made before
me in respect of anybody except Mohd.
Husain being ordered to be shot. Capt. Shah
Nawaz Khan did not say anything about my-
self and Alla Hitta. Alia Dita was not present
with us when we conferred in the nullah

Mohd. Husain admitted that he had inten-
ded to run away ; that he wanted to run away
because he was in trouble ; and asked to be for-
ghmn and said that ho was prepared to go
anywhere tliat he was ordered to. After
that Capt. Shah Nawaz Khan «aid that he
(Mohd. Hussain) was not for his c nintry ; that
he was an enemy, and that hewvould give him
death by shooting. We Avere then marched out.

I am quite clear that nothing else happened.

“ I was given a rifle at the time of the shoot-
ing of Mohd. Husain. I do not know any
weapons other than a rifle. The rifle wms put
on my shoulder in the aiming position by Aya
Singh. I do not know the names of the Tamil
and the Sikh who were present at the shooting
of Mohd, Husain, but they were both ];)resent
■on the scene when I arrived. I do not know

135

anything else about them or what th«y did^

I do not know their names but I have seen
them in Battalion Headquarters* I cannot say
anything more about them than what I have
said. I was not myself then. The nfle wa&
put into position and I was told to hold it. I
held it with the help of Aya Singh. The rifl'o
was pointing to MoM. Husain. He was sit-
ting on the ground about 5 yards away. I
pressed the trigger when one-two-three was?^
said Three shots were fired but I do not
know which shot shot him down. I did not
go to Mohd. Husain’s body to see how many
shots had penetrated it. I did not go near
Mohd. Husain’s body after the firing. Thp
last time I saw it, it was lying there.”

This is the account given by Jagiri Ram and
the most important points are these : First, that be
did not know his fellow shooters and he cannot identify
them. Secondly, he admits that Khajin Shah and Aya
Singh are both alive. The third thing that he says is
that I do not know Mohammad Husain and tbere is no
intelligible ground given why a man who did not know
how to shoot was made to go through this process and
it is for the Court to give some explanation. I can
only submit that I can find none, and under these cir-
cumstances, I ask you to say that this witness’s evi-
dence is evidence which falls short of proof of the death
of a particular individual otherwise not described, and
in the absence of two persons who have not been pro-
duced before this Court.

'fhen, Sir, there is one more witness on this-
point, and that is witness L/Naik Sardar Mohammad-
I will read the evidence which relates to this matter.

I knew Mohammad Hussain. On the
27 til March Lt. Kliajin Shah sent for the
runners. On arrival of the runners he"

ordered them to bring the following men to the
Battalion Headquarters : Sepoy Mohammad
Hussain. Lance Naik Alla Ditta, Lance
Naifc Mohammad Shafi, Sepoy Jagiri Ram

and Sepoy Gobbru Singh Kbajin Shah

told me that these men intended to run
away. He further told me that be was go-
ing to Brigade Headquarters that evening to

talk about these men, and he went away

I met Lt. Khajin Shah on the way and
I handed over these men to his charge.
He let off Lance-Naik Mohammad Shafi
on the spot, because his platoon com-
mander had recommended him, and I came
back. He said that Mohammad Husain had
been sentenced to be shot.^’

I submit with due respect that it is not
good evidence.

‘‘to be snot. Nothing was said about others,
but Jagiri Ram was with him at the time.
He asked me to go to Ghulam Mohammad,
the Brigade Adjutant and ask him whether
Mohammad Hussain was to be shot under
Battalion arrangements or Brigade arrange-

I w’as also asked to bring

Sepoy Mohammad Ibrahim who had been
released from the quarter guard. I
received instructions that Mohd. Hussain
was to be shot under Battalion arrangements
and on the same day. I brought him back
With me to Battalion Headquarters. . . I
conveyed these orders to Lt. Khajin Shah.
Lt. Khajin Shah then ordered me to
grange for the execution cf Mohammad

Hussain He asked mo to detail 10 men

with pick-axe and shovels. 1 detailed these
men to dig a grave. I know that a grave
a. dug. I was then ordered by Lt.

Klhajm .Shah to take Slohammaxl Hiissain
to the edge of a nullah. Mohammad
Hussain was taken to the edge of the
nullah. Lt. Khajin vShah, 2nd Lt* Aya
Singh and Havildar- Major Govind Singh,
some sepoys and myself went with
Mohammad Hussain to the nullah. Lt.
Kha jin Shah ordered Mohammad Hussain to
5>e tied to a tree And also ordered that he
should be blindfolded. I passed on the
•orders to Sub-Officer Govind Singh who
carried them out with the help of two
other sepoys. After this Lt. Khajin
Shah called two men out of the fatigue party
to shoot Mohammad Hussain. They were
both sepoys, one was a Tamil and the
other was a Sikh, x^fter the arrival of
these men, Khajin Shah ordered that Jagiri
Ram would also fire on Mohammad Hussain.
The three men stood in a line facing
Mohammad Hussain and Khajin Shah told
Aya Singh to give the order to fire. x\ya
Singh hesitated. Khajin Shah once again told
him to give the order to fire. Aya Singh
gave the order, “Kneeling Fire.” All
the three sepoys^ fired a round each on
Mohammad Hussain. Mohammad Hussain
was killed. His body rolled over sldew^ays.
Khajin Shah then ordered me fo send

Abdul Hakim to arrange for his burial

Ho casualty report was sent. The sending
of a casualty report was part of my
* duties. I did hot make a casualty report
because night had fallen and we had to
inarch the same night. On the 3rd April
I escaped and reported to the allied
forces

“The. night that Mohammad Hussain was
shot we moved to Logyi. That w^as ou the
29th March, 1945.

That question was put with a view to find out
the connection between that day and the day of
escape.

I did not have the time to prepare a

casualty report of Muhammad Hussain’s
death. On the 1st April 1945 I did not take
a casualty report to Capt. Sahgal. I do know
if any was sent. I knew Jagiri Ram from
^le day he was arrested and taken to Brigade
H. Q, I had been posted to the regiment
oiily three or four days previously, airid that
is why I did not know Jagiri Ram. I knew
that he was a non-combatant nursing orderly.

Aya Singh Avas helping Jagiri Ram to fire
the rifle. He was standing near him.

Jagiri Ram fired with help. Lt. Khajin Shah
ordered that Jagiri Ram will also be one of
the firing squad. I could not see very well
but the firing squad had been orderd to adopt
the kneeling position and the}^ did kneel a bit.

1 do not rernember whether tJagiri Ram was
standing or in the kneeling position. I was
between 12 and 15 yards away Avhen Mohd.
Hussain fell. I went away after giving orders
to ^bdul Hakim. I went near Mohd. Hussain
and found that he was dead. He had three
shots in him. The shirt covering his left
breast w-as torn and from the amount
ot tear I considered there were three
shots. I was not present at his burial.

(Question by, the Judge- Advocate) :

1 When I found that three shots had gone into
hina and that he was lying on a side 1 inferred
that he was dead. The firing was about 8 to
10 yards away from Mohd. Hussain. The
s looting of Mohd. Hussain occurred at about
dusk. I did not see any blood on Mohd.
Hussain.

m

/

This is th^ whole of the evidence that yon have
before the Court and. with the absence of Khajin Shah
and Ay a Singh, with the inexplicable alleged joining of
Jagiri Ram, with the complete unidentification of the
other two persons who joined in the shooting, and with
the most extraordinary story of three shots having gone
into the body of this man in one and the same place
and not a single drop of blood was found, I submit to
the Court that the evidence falls short of any proof of
the execution of this sentence.

Though it is a small point Jagiri Ram
himself said that he fired the rifie standing and I have
a vivid recollection that later on, when he was asked to
say where his muzzle was pointing he was completely
at sixes and sevens to answer the question or to explain
the position, or to answer where and how he held the
rifle and where he aimed and how he shot. That is
the position in so far as the record is concerned.

Then to the evidence relating to the alleged
shooting of the four persons. The first and the most
important point in reference to that shooting is the
exhibit 3V which I have read to the Court. If you
had such clear evidence it is obvious that the other
evidence must be rejected. You have the evidence
about the condition in which Lt. Dhillon then was.
The submission I am making to the Court is that
this event did not take place because the whole of the
story hinges around order after order being given by
Lt. 'Dhillon. I am able to show, as I submit I am able
to show, that document was written at a time when
there was not the remotest occasion of making up any
document whatsoever as to the condition of his health.
But the fact remains that the previous night he had
gone out on reconnoitering and he came back,
and I ask you to pay attention, in a condition so -weak
ohat he had never felt like that in his life before. He
was actually given an injection by the doctor, that 1 1
more had to he given, and it was difficult to find any

140

! more medicine. For chat teasdn alone, if there were

no other reason, the piotnresque account given by the
two witnesses, whose evidencfe I am going to read as to
, ^ the company being called out and Lt. Dhillon standing

and giving orders and calling each man, is a story
entirely untrue. More , than that, the story of the
location of it all seems to be completely upsetting.

As to one of the two witnesses a comment is
^ necessary. He had no intelligible reason to he there;

and he had medicines to give as I shall presently
point out. He also happens to be one of the members
of the nursing staff and he said he had no reason to
remain there. But the still more important thing is

that the second person says— his evidence shows

that the first witness was not there. What do yon
make of that?

Counsel for the Prosecution : He does not say
* that he was not there. He only says, did not see
any other man.”

^ ^ Sri Desai: I say that the true inference

is that he was not there, because he said he saw
nobody, no stranger. The evidence suffers from such
grievous infirmities ; first, the practical improbability
of the person who gave orders for shooting being there.
Of course one can disregard anything ; hut after all you
are to judge by human standards and not by possibiii-
ties. In fact I do go as far as this: supposingf a charge of
, this kind had been brought— apart from a trial of this

kmd'Y 'and evidence had been given as to the impro-
bability of the person who is alleged to have given
orders for shooting being there, no jury would ever
^ venture to convict him. You may say : ^‘Oh, yes

the man was ill but we stiE believe he went there/’ Of
co^se you are entitled to do so ; you are iudaes-
I do not deny that. But I ask you to be judges on
material before you ; and the material before you is
such that as judges of fact it is impossible at all events
as I respectfully put it then and put it now— if you

141

had a reasonable doubt that Lt. Dhillon conld not
hare been there that day, I submit there is an end of
the case. Any other picturesque description is immate-
rial. What is material is that the man who is alleo-ed
to liave given orders for the shootiiig was not there ;
and whether he was there or not depends on the state
of his health, as to which there i£ a contemporaneous
report ; and I submit to* the Court that it would be
highly dangerous to accept, in the state of that man’s
health, the story df these tw^o men. As to both of them
I will be able to , point out inherently from their own
evidence that they are not witnesses of truth ; and that,
you' prefer that evidence and act on yoi.)r own peril. I
submit that is the real issue before the Court. I will
read the evidence of the other two persons who said
they were there.

There is another point which also c:5mes out.
There is no identification of the persons alleged to have
been shot with the persons mentioned in the crlne-
report, I do submit to the Court that if you find a
crime report and on the strength of that document ib
is quite easy to have two willing witnesses of this
kind—peopie who, I submit, on their own confessioa
(and I can show it by examination of their evidence)
ought not to be believed. I say the strongest piece of
evidence in my client’s favour is the evidence of his
state of health that day, and you cannot disregard it..
You can say: “Oh, no; never mind how his health was ;
we still believe be was there.” But I submit that-
that is a process of reasoning which is not, what I may
•call, founded on justice or will be accepted by this-
Court. I will read the evidence of the first witness on
this point:

“One day I was carrying a patient and saw
four men near, a nullah whoso hands were tied
behind their backs and who were escorted by
two .-^entries. When I was coming back after
leaving the patient in hospital, I noticed some

men assembled near the nullah. Seeino; this:
assembly of men, I went up there. When I
reached there, one company was fallen in, and
a trench had been dug there. The four men
were made to sit in the' trench. Then Major
Dhillon asked for volunteers to shoot these
men. Two men from that company and one-
man from Brigade H; Q. came up. Their
names were Naik Sher Singh, Kalu Earn and
Hidayatullah. Two carried rifles and one a
pistol; Sher Singh had the pistol. Then
Major Dhillbn called out the name of one of
the four men in the trench. Major Dhillon
told the company present that these four men,
had gone over to the enemy and had been'
caught, and therefore their punishment would
be death. Then Major Dhillon ordered
Hidayatullah to shoot the prisoner who had
been called out of the trench first. By this
time this prisoner had ooine out of the trench.
He was standing on tile edge of the trench!
This prisoner was then shot by Hidayatullah
and he fell down. The prisoner was not blind-
folded, He was about 20 yards from Hidaya-
tullah when fired upon.”

Then there is the description about the other-
three men in the same way. Then he says :

“I did not see them moving after Sher Singh
had fired. Then I saw Captain Lee, the
Medical Officer of the Battalion examine
them. Captain Lee said something to Major
Dhillon.”

Captain Lee is another witness who should have
I een called to prove this :

“Afterwards Major Dliillon ordered the dead
bodies to be buried. I did not see them

buried..,.. J over to tbe Giir^ba Regi-
ment a fortnight after these men were shot.
These four men who were shot were Jats. I
know ttotixing else about them/'

It is most extraordinary. You have A.B.C. and
D to ^i^^th, and you are asked to believe

the one man who did not know who they were. In a
trial for murder, if you are told that A was ordered to
be shot and some one says : saw somebody shot

and therefore I come to the conclusion that A was shot,”
I think one would be shocked to hear sneh a thing. I
submit we have made our points quite clear in cross-
examination, This witness said :

‘T have never seen these men before. I did
not know where they had come from.”

It is not the charge at all that any four men
were shot for any other crime or for no reason whatever.
You are not called upon to say whether some other
men were shot or why they were shot. That is not the
charge.

Having dealt with the first part, which I do not
want to repeat again, you will see how many infirmities
are there. First, the improbability of Lt Dhilion
being there, according to the description in the sick
report : next, no identification of any of the four men,
never having been seen by these two men before. 1
do not say merely the cumulative effect of the whole
thing — but even if any one of thenv was wanting you
cannot say it is proved.

Then I have tried to prove from this evidence as
far as it is possible to do so, as to whether or not he
was required to go back to his duties, and he ultimate-
ly had to admit that he could not be there in the pro-
per discharge of his duties ; and after all the way in
W/hich you will judge a man is not by merely saying

wivn they did, but by the probabilities of. circums
taiiees. If a maa is expected to be on duty, and he
says he stayed away out of sheer curiosity, W'oiild you
rather prefer to believe that he went to his duty and
was not there, or are you prepared to- say,, just because
he said so, that he was there ? He says further :

“I stopped there for about half an hour.” It
is rather important from the point of view which I
submit is of a manin that condition, w’^hlcli as I said, is a
fact winch you cannot p)ossibly disregard. In that
condition, according to him, this process took half an
hour. Then he says :

I liacl nothing to do with either the men
who were present there or the incident which
took place there, I cannot tell the date or
the week or the month on which this incident
happened. I went over to the Gurkha
Eegiment which was in a nearby village, the
name of which I do not know. The incident
to which I referred happened in 1945. I
did not mention this incident at all in the
Gurkha Regiment. I did not talk to ajiybody
out of the assembly in the nullah. The
company assembled in the nullah was about
iOO strong.”

The next %vitnes8 will tell you there were about
25 men there —

I did not see any outsider apart from the
officers, the company and myself.”

If in the teeth of that, the Advocate-Genera
sti'il insists that my interpretation of the evidence
of the otuer man that he was no stranger is
not correct, i ask the Court hot to accept such
an argument, because he may be plain and tell
us who were there. I cross-examined the other
witness and asked him whether besides the

officers and tlie company there was any stranger, and
he said ‘ No ’ ; and if after that I am to be told that I
have not proved from the motith of the other witness
that the first witness was not there, it is an untrue
interpretation of the evidence. He further says :

“ I knew the names of Hidayatullah, Sepoy
Kalu Barn and Naik Sher Singh because they
belonged to my Battalion. My duty was
to render first-aid. I never prefered first-aid
to the three men I have mentioned. While
at Popa, the Battalipn consisted of 200 to 250
men. The three men do not come from the
same place in India as I do. I do not know
where they come from. I had no personal
contact with these three men before that
date. I had nothing to do with them after
the incident.'’

I say the probability is one in a thousand —
the man knows nothing before, knows nothing
afterwards ; does not shoot and does not know how
to shoot ; has no business to be there ; and yet you are
asked to believe that evidence that the shooting took
place. I submit it is a story which men of reason, just
as we have on this tribunal, will not accept. The
evidence goes (5n —

‘‘ They used to be in my Battalion and I
knew them. I cannot give the nominal roll
of all the men of the Battalion. I know the
names of some but not of all men in the
Battalion. I can give the names of 10 or 12

people in the Battalion I did not talk to

any of these men before that date. I have
never seen these three men since.” — (that is
with reference to the persons alleged to have
been shot).

“ I was 10 to 12 yards away from Major
Dhillon. Nobody asked me why I was stand-

ing therft. I had nothing to do with wha^)
Major Dhillon said on that occasion. I am
not a poet. I am not a writer either. I
swear and say to the Court that I remember
every detail of what I have told the Court.

* 1 remember very well that none of the first
men nor any of the other men were blind-
folded. I omitted this detail in my evidence
because 1 was not asked. I said that three
volunteered to shoot these four men. The
whole company was armed. Most of them
had rifles and a few of them had not. I knew
at that time the name of the man whom
_Major Dhillon selected tD shoot first. I do not
know the names of any of the four men who
were shot nor do I know their identity. After
the shooting, Major Dhillon went away and
so I went away as well. At the beginning I
did not know what was happening there, but
when I came to know what was happen! nv

there, I stayed on to see tho end. I was 12
to 13 yards away from the place where these
men fell. This occurred at about 4 o’clock
in the afternoon. I did not have a watch.”

The next improbability is that at the time there
were sudden air raids, and this process which
according to the witness went on for half an- hour is a
matter for you to consider. But the important
points are those which I mentioned first. This witness
himself says :

“• The place was subject to air attacks during

those days Aeroplanes used to come over-

us frequently. There were trenches about %
and the nullah was a sheltered area. I do not

know the persons who chose the nullah

I am shown my statement of the summary of
evidence. I signed that statement and
identify my signature. It wfl,.s

me before I signed it. My attention is drawn
: tO' the passage. ' As far as I remember, I said
^ that Major Bhillon had ordered Sher Singh to
fire a pistol, bnt it was not taken down.’’

i mean, he is quite willing to- improi^e on aiiy
story so long as yon ask him to do so.

I was not interested in Captain Bee’s
examination or his report. I was not
interested in their burial either. Barbans
Singh gave orders for their burial in my
presence.” '

Questioned by the Court he said r

This company in, the nullah was properly
fallen in. These men were in front of the .
company. The company was about 10 or 12
yards from these men and I stood near the
company on one side. Major Bhillon gave
orders for the fourth man to be shot.”

Sepoy Gian Singh : I remember four men
being shot there. At about 4 o’clock one evening our
company got orders to fall in in a nullah. On arrival
there I saw four men whose hands , were tied behind
their backs. They were in a trench. Major Bhillon
said that these four men had tried to go over to the
British and so they were sentenced to death.” Then
he gives the names and details of the shooting of each
man. ** These four men who were killed were Jats.
I do not know anything more about them.” For all
I care any four Jats were killed, that would be the
proof. That this particular sentence was carried out
wquld be, I submit, the height of improbability, and
unless there is definite evidence that the four particular
individuals named in the crime report were shot, as
having been identified as having been shot, I
submit to the Court that you cannot possibly hold that
these particular four persons were shot. The charge

isai(ing or abetting or the committing of the crime
ot shooting, and by proving that a Jatwasshot, I
submit with very great respect, nothing is proved.
My case IS honestly and deliberately that this is a false
story. I he sentence was not carried out. But takine
. everytmng against myself, and standing before a court
of law I say you do not establish a charge of shootin<T
A by saying that you shot a Hindu. A Hindu mav
have been shot for all I know on the same day! ^

1 , . Then, Sir, we come to the cross-examination of
this witness. “ The nullah to which I have referred
was about five feet wide.” Imagine the picturras
this man gives, and of course it cannot possMy agree
with the other picture. The other picture was one

This man’s picture is
that from where I stood to where the trench was
it was about 2.1 feet, 20 feet deep and five feet widT”
Pew would believe that the company had faUe^in

I cannot imagine
that a company would be asked to fall into a kind^ of
well as this gentleman has described. Then he savs
that the height of the room was about 20 feet. “There
were about 30 men in this space. Such men of the

men had gone out on fatigue. The trench

one end of the nuUah. I do not remember how £y

officers were tnere. Capt. Dhillon was in front of thi

company The trench was below the nullah bed I did

90 and trei4 wfs betwSu

A oTrson irthe Sfh company had fallen in.

A person m the trench could hear what was said from

the place where the company was; if it was spoken
loud enougn to be heard. In thajb narrow space^it is
impossible to suppose that the other gentleman if he
was there could ever have escaped ®d5ecS. T^^e
man sa 3 -s that the whole process took half an
hour, and hence the value of -nl u •
that I make »T X “ , “® submission

I do not remember any person

not belonging to tbe company being there.*'

I say that it requires a lot of conYiction to snbmit
to a court of law that this does not prove what I say
^it proves, namely that the first witness is proved
by the second witness not to have been there. After
all he said that there were thirty people. He knew
that they were members of his company. Others had
gone out on fatigue duty. This man says definitely :

“ I do not remember any person not belonging to the
company being there.” 1 submit with great respect ^
that it has only one and one result, and that is that
at all events the second witness says that the first
witness was not there at all, Bemember that within
that five feet space you could not escape noticing any
man. You could not help it if he was there. We
were standing in a place like this room except that it
was not so broad. At some places it was wider but the
place where we were standing in the nullah was about
5 feet broad. Of these three men who volunteered to
do the shooting, two belonged to the company and oiie
to Brigade Headquarters Police. Those three men who \
did the shooting were fallen in with the rest of the 4
company when they volunteered to shoot. Because
of air raids men used to go and hide themselves in the
nullah bed and Naik Sher Singh w^as hiding in the nullah
at the time. At that time there were constant appre-
hensions of air raids. The trench was about 20 yards
away from where I was standing. The trench was at
right angles to the bed of the nullah. I did not notice
at the time what the length of the trench was. I did ^
not notice whether the nullah was any wider at the
point where thetrencli was. We were standing in two
lines in the nullah facing the end of the nullali and I was
in the middle of the company. All the men were fac- ^
ing towards where the men were shot. The men were
in two groups. Major Dhillon was standing in front of
the two groups, V about 2 paces away from me. 1
heard Major DhiRon order the four men out one by
one. I do not know their names* I had been in the
company for a long time and that is how I knew the

150

iiW*

names of Kalu Ram and Hidayatullah./^ I submit
that this again falis completely short of the proof of
anything whatever like the death of an individual
with whose death a man is accused. Remember that
you have got to be satisfied, not in a vagiie sort of
way, that some peoples were ordered to be shot, that
some people were shot and those who were shot were
those who were ordered to be shot. It is a process of
absolutely vicious reasoning which I hope will not be
resorted to or made use of by the Prosecution. Merely
because the names of four persons whom you say were
shot were there, you cannot prove that they were shot
by saying that some people were shot.

Therefore, to summarise the evidence, it suffers
from the worst infirmities, and much more so in a case
where a man is charged with murder. First, it is
improbable that the person who is alleged to have
given orders was there or could have been there. It is
improbable that in that state of health he coitld have
been there for the period of time alleged for the
process. Next, neither of the two witnesses is able to
identify in the least degree who was shot. Then, the
second witness says that the first witness was not there,
and the second witness gives a picture which it is x or
you to believe to what extent it is correct. And
then in addition to that. lam going to call attention
to the evidence of witnesses, where in many instances
of that kind, people were sort of sentenced but the
sentence was never carried out.

*^^^0 evidence to which I am referrin;^ is the
evidence of .P. W. 5 and it belongs to the same period
to which this particular alleged shooting refers. The
evidence of P. JV". 5 in cross-examination is : ‘‘I know
Captain Rab hjawaz. ITe was the pommander of one
of the P. 0. W’s Camps a!; Port Dix n, and the other
camp was commanded by Capt. Kar i Ghana Bias of
the first Bhawalpur Infantry. Cap! Rab Nawa/^. did
not volunteer for the I. N. A. nw did Captaui Bias

After Capt. Sakgafs oonferepce on tlie Ist of Marcii,
within the next two weeks, there were several people
arrested. After investigation all were released except
Capt. Bedi. The reason for my reinenibering the
date on which”' Capt. Sahgal commanded No. 2
Division was that on 28th February 1945 five o:(ficers
deserted and on that occasion Capt. Sahgal arrested
Captain Bedi. Captain Sahgal arrested Captain Bedi
on the 1st or 2nd of Match 1945 as a Divisional
Commander. I do not remember the exact date on
which Capt. Sahgal began to act as Divisional
Commander. ’’

' Then, Sir, you have the evidence of Gangasaran,
to which I have already called attention, and this
belongs to the same period as the date of the alleged
execution of this sentence. Considering the evidence
on record, I would submit to the Court that there
is such a. lacuna of evidence of identity, of improba-
bility, tli at the Court should hold that there is at
least a reasonable doubt whether this particular event
took place. I of course put it more affirmatively my-
self, but feeling as I do in a case of this kind, it is my
duty to put the case at the very lowest, ‘ and I say
that there is waxit of evidence that is sufficient for my
purpose. It is not enough that A should have been
ordered to be shot, that by any process of reasoning
therefore he xxxust have been shot. That is a process
which I submit is wrong and not permissible. The actu-
al execution of the sentence has got to be proved with
complete identity between those against whom the
sentence -was passed and those 'whom it is alleged w'ere
shot on this occasion. The thing has got to be proved
by affirmative evidence and the burden of proof is
completely on the'* Prosecution, hundred witnesses
notwithstanding. In this case there are only t^vo.
One of them, says that the other Avas not there. The
point really is not how the deficiency of evidence
arises. The question really is that the burden, of

proof being on tlie Prosecution to show that a
definite person, A, B, C, or D was killed, and died
fis a result of the action of a person who ordered
the shooting is a fact, which must be proved.

Ali that is proved is, taking the allegation at
its face value, that four shots were fired, and the
identity of the persons shot is not known. My sub-
mission to the Court on that is that the evidence on
this point suffers from infirmities which I have de-
tailed to the Court in dealing with the evidence.

Therefore with reference to this charge dealing
with murder, my submission is that the Prosecution has
entirely failed to prove the charges. The alternative
submissioR is, assuming that the Court agrees with me
that this was done in due course of the execution of
the duty of an officer in the I, N. A. governed by its
*own code, there is no question of any liability.

I say that Kalu Ram and Sher Singh who are
said to have fired the shots are alive, and there is not
that sufficiency of evidence either on facts or
identity. Therefore I ask the Court not to run away
with the idea that a sentence was passed on A, B, C and
D, some people were shot on that day, and therefore
the persons shot were those identical persons. This
is a point which I cannot too often submit for the
consideration of the Court. To say that A was shot
because some persons were shot, is indeed a piece of
logic which ought not to be allowed in a» case of this
grave magnitude. It is not permissible even in an
ordinary ca-vse.' The question says: Bid you see A ?
The answer is-: I do not know, but I saw somebody
going into the fort and he was expected to go there.
In a case of this kind, to say that he did go, would be
t.he height of wrong reasoning. That is all I have got
<*0 say on the question of the sentence.

15-3

. I submitted in the begining of this case that
this army of the T. N* A. was an organised army. The
actual sections of the I. N. A. Act have been cited,
as the Court will see from the crime report, and the
Court will see that there can be no liability for any
acts done in due prosecution of the war in the execu-
tion by officers of their respective duties. That of
course is a complete answer. I submit that even if the
ease is laid against A as a private individual, even
then the evidence on the subject of having caused
death, falls short.

Then there is a small point. I come to the
evidence of Col. Eitson and Ghuiam Muhammad with
reference to the circumstances of Captain SahgaVs
surrender. It is a point of substance, beca\ise under the ^
terms of the surrender which were offered and accepted,
the accused are entitled to all the privileges of prisoners
of war on the cessation of hostilities. I shall npw
read the evidence of Col. Eitson, P.W. 29. He says:

I then went forward myself up to the east
corner of this village, when I met my leading
Company Commander together with Captain
Sahgal, the accused. With him were a num-
ber of other o.fficers of the Indian National
Army and approximately a hundred Indian
troops of the I.N. A. at that x3artioular time.

More appeared later. My leading Company
Commander handed me a note which he had
received from a surrender party under a white
flag. I am afraid I have not |)reservecl the
note. I destroyed it about two months later
when I was going through some papers, and I
am afraid I saw no importance of this note
which I threw away. The note was addressed
to the Commander of the British Forces, or
may have been addressed to the Allied Forces,
and it said that approximately 30 officers and
500 troops of the I.N.A. wish to surrender as

prisoners of war. I tlien. talked to Captain
Saligal, and lie gave me his name and his
regiment. He said ‘ I am Captain Saiigal %
and I asked him what his nnit was both in the
I.H. A, and in the Indian Army, and he told
me then that ' he had been in the 5/lOth
Baliich and that he was then commanding a
regiment of the I.K.A., and that he bad with
him there at his Regimental Headquarters a
ist Aid attachment and one Battalion of his
Regiment. I then made arrangements for
the collecting of all the arms of the prisoners
and arranged with Captain Sahgai about their
feeding. We had no food for them.'’

You have to read this evidence in the light oi
what Ghulam Muhammad said. He has given evi-
dence before you to this effect that all non-commis-
sioned officers collected together, they w-ere given an
hour’s time; to consider the question of surrender as
prisoners of war, and that if that was not accepted
they were prepared to light. A letter to that eff’ect
was written and despatched, and you have the evidence
of Col. Kitson as to what happened. Under these
circumstances I submit tnat in so far as the surrender
of Captain Sahgai is concerned, it has been on the
terms on which the offer was made, and I submit he is
entitled to be released.

There are one or two small matters which I
should like to deal with before I raise three points of
law. You must have heard the evidence of the last
defence witness, Captain Arshad. He gives you a
truthful account of what occurred prior to the surren-
der of Rangoon, and the reoccupation of Rangoon.
I have produced four documents which ciearly
show the recognition on the part of the British
officers of the existence of an organised army
called the I. N. A. The men in charge have
been addressed by their proper designation and

they have been entrusted with definite duties, and
there is ample evidence to prove that the I.lsT.A. was
an organised army, and it was treated as an organised
army. I would;draw your attention to Exhibits 5 Us.

5 Vs. and 5 Ws. You will find instructions there
regarding the address of officers. This includes a
doGument by Brigadier Lauder.

So, I submit that right up to the time of the
surrender there has been recognition on the part of the
opposing armies, that the I.Sf.A. was an organised army
and it was so referred to and addressed through its
proper officers. They were also recognised as officers
for the time being. That, Sir, is practically the whole
of the case regarding the documents and the recorded
evidence.

I now come to certain submissions regarding
further points of law. They are three in number and
they are founded on a true interpretation of the Indian
Army Act and of the rules thereunder. Under Section
41, this Court is authorised and is given jurisdiction to
try among others civil offences.

The word ‘ civil offence ’ is defined in the Act
itself. Section 7, Sub-Section (18) reads; '‘A civil
offence means an offence which, if committed in British
India, -would be triable by a Criminal Court.” The
question really depends on the true construction of
the words ‘ triable by a criminal court h I know and
I am fully aware that the Criminal Procedure Code
has not been applied to the proceedings of this Court.
But that is irrelevant to the issue that I am now going
to submit to the Court. If, by the definition under
Sub-Section (18) yoix have to find out what is triable
by a Criminal Court, you cannot just do it in the air.
I defy my honourable fi;iend, or anybody else, to say
what it is unless you go to the appropriate Act which
show's what things are triable by a Criminal Court.
That is not saying that the Criminal Procedure Code
is applied here. That is where there is a likelihood of

false reasoning. The point is this. In order to un<
stand one statute, and where the statute exprei
refers to what is triable by a Criminal Court, you ii
go to the statute which defines what is triable bi
Criminal Court. It would be an extraordina'-y th
if the whole thing were left in the air. Therefore,

witB standing that the statute is not applicable to the

proceedings of this Court. What I do say is this.
If you have to find out what is triable by a Criminal
Court, you must go to the statute which shows what
is triable by a Criminal Court, and that statute, so far
as one is aware, is the Criminal Procedure Code. On
that two points arise. One is that under Section 196
of the Criminal Procedure Code it is laid down as
follows .

“ No court (meaning no criminal court) shall
take cognizance of any offence punishable under
Chapter VI (which is this offence) unies.s upon the
complaint made by the order or under the authority
of the Provincial Government or some officer em-
powered by the Provincial Government in this
behalf.”^ If merely for the purpose of finding out

what is it that is given to you for triar yon have to

go to another statute, then it is a wrong argument
to say that you will not. Let me put it in
plainer language. When you say that my terms of
engagement are the same as- those of Major Preetam
Singh’s, it is not enough. I must ascertain my terms
from the contract. That is the simple illusfcmtii m which
T^l bring home to even a layman's mind the point
th^t I am intending to make. The point that 1 am
making IS this that the civil offences which are com-
mitted to you for trial are tho.se which will be triable
by a criminal court. Therefore, my first submission
IS that what offences are triable by a criminal emirt
_you! can only discover by looking at another law which
IS appropriate to the purpose and not bv shutting vour
eyes to it. When you go and look^into that law

'what do YQp find ? That law requires that that
offence would not be triable by that criminal court
except upon the complaint of an officer of the Local
Government, etc. It has nothing to do with Captain
Mead's case or any other case. That was a case of
Section 270 of the Government of India Act and has
got no bearing on the question. The poh^t is this.
How do you discover or where do you discover that the
offence is triable by a criminal court. That you
must discover because you cannot say that anything
that is brought to you for trial, you will try.
You will yourself ask : ‘ ‘ What is it that
I am entitled to try and if 1 am only
entitled to try that which is triable by a criminal
court, I must necessarily go to the statute which gives
me that power." My submission to the Court is that
by reason of Section 196, no complaint having been
made by a Local Government or an officer in that be-
half appointed by them, this Court may not try an
offence under section 121, Chaxcter VI. My next point
is again a point of construction, a point which, I
submit, is of commonsense. If I am given a power
to try offences within a certain limit, then 1 muso find
out what is being triable by a criminal court. If I
find that a criminal court is incapable of trying an
offence, then you must come to the conclusion that a
criminal court of its own motion and of its own autho-
rity is incapable of trying that offence. If a criminal
court is incapable without more of trying the offence,
equally this Court is incapable of trying the offence.
In other words, there are two alternative arguments
before the Courv. One is that within this sphere of the
offences triable by this court, this particular offence
does not %11, in that it is not triable by a criminal
court without more. In other words, a criminal court
of its own motion could not possibly take cognizance
of this charge. Until the Local Government by itself
or through its proper officer, does not move, the crimi-
nal court is incapable of trying it. Therefore, the
question is two-fold. .Firstly, that the criminal court

Lo8

being incapable of trying, this Court is also incapable
of trying it. Secondly, if you put the point that the
criminal court is capable of trying, but with a condi-
tion satisficrL Therefore, in either view of the case,
this Court is not competent to try the charges before
it. My submission is that, in so far as the charges
of alleged murder by Shah Nawaz or Dhillon are
concerned, they are really part of it and nothing else.
It is not suggested on the record that either of them
wanted to shoot anybody for personal enmity or for
any other cause of any other kind. It is patent on the
face of the record that they were part of the actions
which they took as ojBdcers of the I. N. A. Therefore,
my submission is that the Court is not competent to trv
the two sets of offences before it. Per conira if the
Court is of opinion or should it come to be of opinion
that the charges of murder or abetment of murder*
are independent charges, then my submission to the
Court is that under Rule 24 of the rules of conduct
of trial ill tJiis court, the joint trial is completely
illegal on a decision o^ the Privy Council in Indian
Law Reports, 25 Madras, Snbramaniam’s case. (Rule
24 was read out and the Judge Advocate pointed out
the amendment to it). That does not fall within the
Rule because^ as to the murder and abetment of
Muhammed Hussain all the persons are not there. So
that whether you call up this rule or any other rule
there is what you my call in ’the plain language of the
section, a complete misjoinder of the charges and of
the accused. Shah Nawaz has nothing to do with the
alleged murder nor has Dhillon anything to do with
the murder of Muhammad Hussain. I submit to the
Court confidently thatif you tr^at the second set of
charges as independent charges, this trial is wholly
illegal.

# I will now give to the Court the judgment of
the Privy Council in Law Reports, 25 Madras, on
page 61.

‘' The appellant was tried at the Criminal

169

Sessions qf tlie High Court, and convicted cn
a?;} indictment the first count of which con-
travened the provisions of Section 233 and
234 of the Code of Criminal Procedure (which
proved that every separate oSenco shall
be charged and . tried separately, except
that three offences of the same kind may be
tried together in one charge if committed
within the period of one year), and did not
fall within the provisions of section 235 (1)
which x>rovides that, if, in one series of acts
;SO connected together as to form the same
“transaction, more offences than one are com-
mitted by the same person, he may be
charged with and tried at one trial for
every such offence. On a case certified
under article 26 of the Letters Pedent and
.and heard by the Full Court, it was held by
the majority, of the Court that, the union of
the first count with the others made the
whole indictment bad for misjoinder, but
that it was open to them to strike out the first
count, rejecting the evidence with regard to it,
.and deal with the evidence as to the remain-
ing, counts of . the indictment. This was done
with the result that the conviction was
upheld on one count only,, the sentence being
reduced.: . . . -

Held, by-the Judicial Committee that the
disregard of an express provision of law as. to
the mode of trial was not a mere irregularity
such as could he remedied by Section 537 of
the Criminal Procedure Code. Such a phrase
as irregularity’ is not appropriate to the ille-
gality of trying an accused person for more ^
different offences at the same time, and those
offences being spread over a longer period than
by law could have been joined together in

one indictment.

Hot conld such illegal procedure be am-
ended by arranging afterwards what might or
^ight not have been properly submitted to the
]urv l o allow this would leave to the Court
the functions of the jury, and the accused
would never have been really tried at all upon
the charge afterwards arranged by the Court.

conducted in a manner
prohibited bylaw, was held to be altogether
Illegal and the conviction was set aside".’'

p. 96.

The judgment of the Lord Chancellor

IS on

_ ‘^In this case the appellant was tried on
an indictment in which he was charged with
no less than forty-one acts, these acts extend-
ing over a period of two years. This was plainly
m contravention of the Code of Criminal Proce-
ure, Section 234, which provides that a per-
son may only be tried for three offences of the
same kind if committed within a period of
twelve months. The reason for such a provi-
Sion, which IS analogous to our own provisions
embezzlement, is obviously in order
that the lury may not be prejudiced by the
multitude of charges and the inconvenieLe of
^ of instances

consequent embarrass-
ment both to judges and accused. It islikelv
to cause confusion and to interfere with the
fhp distinct offence which it is

tteobject of all cnmmal procedure to obtain,
die policy of such a provision is manifest and
the necessity of a system of written accusation
specifying a definite criminal offence is of the

th Procedure. Their Lordships

tiiinl^ that the course pursued and which was ■

161

plainly illegal cannot be amended by arranging
afterwards what might or might not have been
properly submitted to the jury.”

It means that it is too late for even this Court

to say, '‘We vdll either strike out the charge of
waging war or strike out the charges of
murder and abetment of murder in
which some of the persons are uninterested
and not charged with reference to offences
charged against others.”

Then the judgment proceeds —

"Upon the assumption that the trial was
iilegaiiy conducted it is idle to suggest’ ’ — I
am glad I am not using those words but the
Lord Chancellor uses them — "that there is
enough left upon the indictment upon which a
conviction might have been supported if the
accused had been properly tried. The mis-
chief sought to be avoided by the Statute has
been done. The effect of the multitude of
charges before the jury has not been averted
by dissecting the verdict afterwards and
appropriating the finding of guilty only to such
parts of the written accusation as ought to
have been submitted to the jury.

" It would in the first place leave to the
Court the functions of the jury and the accu-
sed would never have really been tried at all
upon the charge arranged afterwards by the
Court.

Their Lordships cannot regard this as cured
by Section 537.”

They do not say that any irregularity has not
•caused injustice and so does not matter. But
even that does not exist, because he must

162

l)e held to the consequence in both ways. My learned
friend says that the Criminal Procedure Code does
not apply, and as such we proceed. So he cannot
have resort to Section 537. And then you get back
to a very narrow point that the trial, as I submit, is
clearly in contravention of Rule 24 of the Rules of
Procedure. It is a complete irregularity and there is
no way of curing it. Their Lordships proceed:—

“Their Lordships are unable to regard the
disobedience to an express provision as to a
mode of trial as a mere irregularity.”

In other words, you cannot in one trial charge

eople collectively unless they have committed all the
offences collectively, wnich admittedly they Lave not
done. Even on the extended words which the
Judge- Advocate read they would not apply because
one thing is quite clear in relation to the charges,
end that is this, that some of the accused are not
in any maimer liable for the offences alleged to have
been committed by others. Therefore I submit that
this trial is wholly illegal. The judgment pro-
ceeds:—

“ Such a phrase as irregularity is not appro-
priate to the illegality of trying an accused
person for niany different offences at the same
time and those offences being spread over a
longer Tieriod than by law could have been
joined together in one indictment. The
illustration of the section itself sufficiently
shows what was meant. ”

The remedying of mere irregularities is
familiar in most systems of jurisprudence, but it would
be an extraordinary extension of such a branch of
administering the Criminal Law to say that when

the Code positively enacts that such a trial as that
which has taken place here shall not be permitted that
this contravention of the Code comes within the
description of error, omission or irregularity.

“ Some pertinent observations are made
upon the subject by Lord Herschell and Lord
Russell of Killowen in Smurthwaite vrs
Hannay, where in a civil case several causes
of action were joined Lord Herschell says that
■ Ji unwarranted by any enactment or rule it is
much more than an irregularity’ , and Lord
Russell of Killowen in the same case says,

, ‘Such a joinder of plaintiffs is more than an
irregularity; it is the constitution of a suit in
a way not authorised by law and the rules
applicable to procedure’.

With all respect to Sir Francis Maclean and
the other Judges who agreed with him in the
case of In the Matter of Abdur Rahman, he
appears to have fallen into a very manifest
logical error in arguing that because all irre-
gularities are illegal, that therefore all things
that may in his view be called illegal are
therefore by that one adjective applied to
them become equal in importance and are
susceptible of being treated alike. But the
trial was prohibited in the mode in which
it was conducted, and their Lordships will
humbly advise His Majesty that the con-
viction should be set aside.

And I submit it does not require much argument.
It is therefore wrong on the face of the charfijes with
which these men are charged, and I submit that this
trial is wholly illegal and I ask you to hold
it so.

164

I That is as far as I will go on the record on the

points which arise for yonr decision, and there are very
few points indeed. I will plainly and briefly state to
^ ^ the Court the points on which I rely, so that there may
W be no room for mistake or equivocation about it. I say
I that this is a case of men not acting on their own in

I any struggle or waging war at all. This is a case of ^

J. ^ men as part of a regular organised army, accepted as"
such by their opponents, fighting a war under the
I directions of a regularly formed Government. That
^ being so, I submit that they are subject to the ordinary
laws of war with which I have troubled you at some
length, namely, they are entitled to all the rights and
iihmunities of belligerents. My submission is that to
the extent to which this is a matter pertaining to war
and the conduct of war it is outside the municipal law.
But I am afraid sometimes in the narrow precincts of a
Court like this, one may say : “What have I got to do
with international law?” But fortunately for myself I
am fortified in this case so that I can fall within the four
corners of the Indian enactment, i. e., Sec. 79. Isay
that if my first submission as to the jurisdiction of
municipal law and its non-application is not upheld by
this Court — though I submit it should be — I say that
within the meaning of Sec. 79 it is quite plain^ — you are
1 bound to give effect to it and I have submitted

I authorities — that the word “ law ” as administered in

I Britain and India recognises the principles of inter-
I national law. And therefore, if a thing is justified yb
law, T can plead justification before this Court under
I ’ Sec. 79. That is my first point.

i My second point before the Court is that as

I regards questions which were incidental, I do not wish
r to repeat them here, though I wish to submit to the
I Court that the question of allegiance is irrelevant to
1 the issue, but to the extent to which it is relevant I have
■ already submitted that when the time arrives in relations
k between the Crown and the Colonies, the Colonies are
f entited to throw off their allegiance on the outbreak

165

of war for the purpose of their liberation. And I have
given you the most classical instance of those who are
now the friends of Britain and, if I may say so, their
warmest and greatest supporters in the task of saving v
civilisation. You could not have a stronger instance i
than that. I

*■ ' " " '!

Then the next-point which I ask the Court to '
hold is that on a question of fact entirely, in so far as= . 1
the Indian National Army was concerned, it was a
voluntary organisation. Even if there were conscrip-
tion, it does not make any difference in this case, be- ;
cause there are countries where there is conscription and ;
punishment attached to it even today. But it has ‘

become fashionable to say : Oh, there was torture ^

and coercion” and all the rest ofit, and I ask the
Court to hold that it was entirely free from any such
complaint. At all events, apart from any hearsay,
on the evidence recorded before this Court, I have i
already submitted that the people who complain of
torture fall into four classes : there were these who ^
prove that in two cases it was for reasons w^hich are 1
self-confessed in one case and practically admitted in
the second case. The first was refusing to do fatigue
and the second case was cow- killing. As to the other '

cases of an isolated character, they are exaggerated, '

and deserve nothing else but contempt at your hands.

If men were asked to do fatigue duty, merely
because they have to carry baskets or make beds foi .
the purpose of sowing vegetables, if they say it was l
torture, I hope my learned friend will not use that ‘
word in connection with that conduct.

Then I ask the Court to hold that in any event
this evidence is totally irrelevant for the purpose of |
this case, for the reasons which I have submitted,
namely, that the ground on which that evidence was
attempted is entirely proved not to exist.

The next thing that I submit to the Court is

166

that the evidence with reference to the afleged charges
I f murder would he really covered, if I am right in
ay first submission, by the fact that they are part of
the prosecution of the war, in that these people wer^
sentenced by Court Martial to be shot under the proper
law. The next thing I ask the Court to hold is that
there was an organised Government, that a very large
number of Indians in the Par East owned allegiance
to this Government, which was recognised, having had
ceded to it territories which are mentioned, and it
was hy this Government that war was declared,?and
the Indian National Army fought this campaign.

I will hand over to the learned Judge-
Advocate the list which I offered to give him yester-
day on the point which my learned friend on the other
side attempts to make, in that as if there w^as some
provision as to flogging, intending possibly thereby to
argue that the whole of that Code was an uncivilised
Code. I think he was snatching at a complete straWj
because as to the rest of the Act he admitted that it
was in consonance with the Indiian Army Act. And
the only thing that he referred to is corporal punish-
ment. I am therefore handing to the Judge- Advocate
provisions of the law in which the same thing appears
under a different head, in force when the Indian Army
Act was in operation.

Judge- Advocate : Are you referring to Sec. 22 of
the Indian Army Act?

Sri Desai : My learned friend tried to
make out as if whipping was a punishment which
was abolished with reference to the army in this
country, and I submit that he was entirely mistaken.

Judge- Advocate : The very first sentence in writ-
ing that you have given is wrong. You have got flogg-
ing under the Act as it stands. Punishment of whipping
can be inflicted on menial servants up to a maximum

167

of20scores— that is what is written here, and the
correct thing is 12 strokes on active service.

Sri Desai : If I am wrong, I must correct

myself.

Judge-Advocate : I have corrected it now.

Sri Desai : The point, Sirs, which I am trying
to labour before the Court is this : In addition to the
provisions in the Indian Army Act, there are provisions
under the Defence of India Act and in the Ordinances.
All of them have got to be taken together to see
whether or not, and what punishment is permissible.

By Ordinance 3 of 1942 — if necessary we will
produce the actual copy of the Ordinance before you—
whipping was ordered as a punishment.

Let me get hack to the point : The point really
is that in so far as the governance of the Army is
concerned, it was governed by an Act which, except for
the purpose of whipping, has been practically or
tacitly admitted to be the Indian Army Act. As
regards whipping, I submit to the Court that that kind
of punishment exists, though not in the Army Act
wholly, in the three Ordinances which are reproduced.
Supposing to the extent to which there was an excess
of the number of strokes, I submit with very great
respect that it is not going to make an uncivilised
Army because of that. Therefore, substantially the
point is, there is an army governed by a Code which is
substantially, if not actually, word for word, the same
as the Indian Army Act.

I next come to the question that, in fact, the
alleged atrocities — that is the mildest word that can be
used from the point of view of my learned friend —
which are said to have been exercised for the purpose
of getting enrolment to the I.IST.A. are in fact not

168

true. Tha accused are not charged with It, nor have
they anything to do with it. They neither did it,
nor permitted it, nor encouraged nor have
they any knowledge of it. That, Sir, is the
actual position so far as that charge is concerned.

Then, coming to the alleged charfce of mur-
der and abetment, I have dealt with that and I have
satisfied the Court that the execution of the sentences
has not been proved.

My next submission to the Court is that this
trial is wholly illegal.

My next submission to the Court is that so far as
the construction of the words ^offences triable by a
Criminal Court’ is concerned, the Court must have
reference to the only enactment which says what are
the offences triable by the Court, and you cannot do by
saying that the Criminal Procedure Code is not applic-
able, — and if it has to be resorted to, then it has to be
stated : First, this charge is not triable at all. Alter-
natively, in any case, this charge is not triable except on
the complaint of a Local Government or an officer
authorized in that behalf, and such a complaint does not
exist. And for this reason my clients should be declar-
ed innocent of the charges against them.

The last thing that I wish to say is that if any
new or iiesh authority is cited by my learned friend
which I had no opportunity of meeting, I should be
permitted to hand in a very short statement, coveriBg a
single page, as to why those authorities if they are
relied upon are not applicable to the facts of this case
or to the decision in this case.

Finally, Sirs, I acknowledge with appreciation
the courtesy and attention that has been given to us,
and I hope that when I hand over a signed transcript to
each member of the Courts it will receive such attention
as it may deserve.

With regard to yoiir last
submission, under what rule are you applying to make
another address ?

Sri Desai : I do not pretend that there is a rule.
It is a matter of common justice. If any authority is
cited by one side which the other side has never had any
opportunity of seeing or meeting, with the best of
imagination he could not possibly deal with it. There-
fore, common fairness demands that he should be given
a| chance to explain. All that is forbidden is an
address to the Court. But surely for your own assist-
ance, if we may pretend that we are able to give any
assistance, if anything is cited by the other side which
is not seen by me, surely I should be allowed to present
to the Court a very short resume of my grounds on
which it is not applicable.

Judge- Advocate : Would that not apply to any
case in which your opponent had the last word 1

Sri Besai: Then the law is accepted. My
learned friend will not contradict it. Even when a man
has no right of reply and a fresh authority is cited, he
has a right to answer. I hope my learned friend will
agree with me there. It is a rule of common fairness.
You do not need a rule for this : that a thing which
is never urged before this Court, is urged before this
Court, and no reply is allowed.

Judge- Ad vocat e : As I have often told you,
gentlemen, a Court Martial is bound by very rigid
rules outside which they cannot go. The rule is la d
down for your strict obedience by the Indian Legislia-
ture, and whether rightly or wrongly you cannot go
outside that rule. Buie 48 of the Indian Army Act
is the only rule I know with regard to the right of
address, and it reads as follows :

(Reads Buie 48 of the Indian Army Act.

170

That rigid rule is for your strict compliance.

Sri Desai : There is one point I would like
urge. The words are : “The Prosecutor may reply .
If the Prosecutor confines himself to merely replying to
what I have said, I have nothing to say. Let him be
confined completely to what I have argued by way
of reply, and I am quite content. I am glad tha
though the ruling is partly against me, it is partly in m^v
favour also. Let that ruling be strictly followed, namely
that it will be enjoined on the Prosecutor that he does
nothing more than reply to what I have argued. Then
I am quite content.

Judge- Advocate ; The Court regret they aro
unable to permit a further address by the Counsel for
^e Defence after the address of the Counsel for the
Prosecution.

Sri Desai : Would the Court direct that the
Prosecutor would only reply what I have argued
and nothing more ? You cannot have it both ways.

; Counsel for the Prosecution : - That is not tho
meaning of the word reply, ’ I submit.

Sri Desai : If my friend thinks that he is
supporting the cause of justice by saying that I cannot
reply to a new matter in case law, that is a new law.

prepared to submit to this restriction, I sub-
mu the law lays on him the duty merely to reply to
I have said. I have nothing more to say, justice or
justice. I hope my learned friend cites nothing
js not strictly relevant to what I have said.

4-1^ ^ Prosecution : My submission is

that it IS not replying to what you have said but it.
means addressing the Court on the case, I ask for

adjournment for my address and I have to ask for an

adjournment up to Saturday. What I intend to do is

4io give my address in writing, if not the whole of it, at
least the largest part of it. V

: The whole pf your address on

Saturday ?

Counsel for the Prosecution : I think so. But I
would suggest that an extra hour might be thrown in.
If I have it in writing, it will not take so long.

Sri Desai : I have no objection.

Counsel for the Prosecution : To be on the safe
:side, an extra hour might be put in on Saturday.

President; ISTo objection?

Counsel for the Defence : Certainly not.

Application for adjournment by Sir P. Engineer.

Note hy the Court

The Counsel for the Prosecution requests an
, adjournment until Saturday, 22nd December 1945
for the purpose of preparing his closing address. The
Dourt allowed this adjournment.

At 16-30 hours the Court adjourns until 10-00
hours on 22nd December 1945.

18th December, 1945.

I'72

PROCLAMATION

OF THE

PROVISIONAL GOVERNMENT OE

AZAD HIND

After their first defeat at the hands of the
British in 1757 in Bengal, the Indian people fought an
uninterrupted series of bard and bitter battles over a
stretch of one hundred years. The history of this pe-
riod teanas with examples of unparalleled heroism and
self-sacrifice. And in the pages of that history, the
names of Sirajuddaula and Mohanlal of Bengal, Haider
All, Tippu Sultan and Vein Tampi of South India,.
Appa Sahib Bhonsle and Peshwa Baji Rao of Mahrash-
tra, the Begums of Oudh, Sardar Sbyam Singh Atari-
wala of Punjab and last but not least. Rani Laxmi-
bai of Jhansi, Tantia Topi, Maharaj Kunwar Singh of
Dumraon and Nana Sahib among others— the names
of all these warriors are forever engraved in letters
of gold. Unfortunately for us, our forefathers did not
at first realise that the British constituted a grave
threat to the whole of India and they did not therefore
put up a united front against the enem}^ Ultimately,
when the Indian people were roused to the reality of
the situation, they made a concerted move and under
the flag of Bahadur vShah in 1857, they fought their
last war as free men. In spite of a series of brilliant
victories in the early stages of this war, ilMuck and
faulty leadership gradually brought about their final
collapse and subjugation. Nevertheless, such heroes
as the Rani of Jhansi, Tantia Topi, Kunwar Singh
and Nana Sahib live like eternal stars in the nation’s
memory to inspire us to greater deeds of sacrifice and
valour.

Forcibly disarmed by the British after 1857 and
subjected to terror and brutality, the Indian people lay

17S

prostrate for a while— but with, the birth of the lodiaa
National Congress in 1885 till the end of the last World
War, the Indian people, in their endeavour to recover
,l^heir lost liberty tried all possible methods — namely,
agitation and propaganda, boycott of British goods,
terrorism and sabotage— -and finally, armed revolution.
But all these efforts failed for a time. Ultimately in
1920, when the Indian people haunted by a sense of
failure, were groaping for new methods, Mahatma
<jrandhi came forward with the new weapon of non-co-
-operation and civibdisobediance.

For two decades thereafter, the Indian people
/went through a phase of intense patriotic activity,
'The message of freedom was carried to every Indian
home. Through personal example, people were taught
iio suffer, to sacrifice, and to die in the cause of freedom.
From the cities to the remotest villages, the people
were knit together into one political organisation Thus
dhe Indian people not only recovered their x^oliticai
•consciousness, but became a political entity once again.
’They could now speak with one voice and strive with
one will for one common goal. From 1937 to 1939,
through the work of the Congress Ministries in eight
provinces, they gave proof of their readiness and their
^capacity to administer their own affairs.

Thus, on the eve of the present World War,
the stage was set for the final struggle for India’s
liberation. Daring the course of this war, Germany,
with the help of her allies, has dealt shattering blows
'l-o our enemy in Europe,— while Nippon, with the help
of her allies has indicted a knockout blow to our enemy
in East Asia. Favoured by a most happy combination
of circumstances, the Indian people today have a
wonderful opportunity for achieving their national
emancipation.

For the first time in recent history, Indians
.abroad have also been politically roused and united in

174

one organi’zation. They are not only thinking and
feeling in tnne with their conntrynien at home, but are
also marching in step with them along the path to
freedom. In East Asia in particular, over two million
Indians are now organised as one solid phalanx, inspir-
ed by the slogan of “Total Mobilisation”. And in
front of them stand the serried ranks of India’s Army
of Liberation, with thelslogan Onward to Delhi ” on
their lips.

Having goaded Indians to desperation by its
hypocracy, and having driven them to starvation and
■death by plunder and loot, British rule in India has
forfeited the goodwill of the Indian people altogether,
and is now living a precarious existence. It needs but
a flame to destroy the last vestige of that unhappy
rule. To light that flame is the task of India’s
Army of Liberation. Assured of the enthusiastic
support of the civil population at home and also of a
large section of Britain’s Indian Army, and backed by
.gallant and invincible allies abroad, relying in the
first instance on its own strength, India’s Army of
Liberation is confident of fulfilling its historic role.

Now that the dawn of freedom is at hand, it is
the duty of the Indian people to set up Provisional
Government of their own, and launch the last struggle
under the banner of that Government. But with
.all the Indian leaders in prison and the people at
home totally disarmed — it is not possible to set
up a Provisional Government within India or to
launch an armed struggle under the aegis of
that Government. It is therefore the duty
of the Indian Independence League in East Asia,
■supported bj^ all patriotic Indians at home and
abroad, to undertake this task — the task of setting xip
■a Provisional Government of Azad Hind (Free India),
and of conducting the last fight for freedom, with the
help of the Army of Liberation (that is, the Azad Hind
-Fauj or the Indian National Army) organised by the
League.

175

Having been constituted as the Provisional
Go vernment of Azad Hind by the Indian Independence
League in East Asia, we enter u|)on our duties
with a full sense of the responsibility that has devol-
ved on us. We pray that Providence may bless our
w ork and our struggle for the emancipation of our
Motherland, and our comrades in arms for the cause
of her Freedom, for her welfare and her exaltation
among the nations of the world.

It will be the task of the Provisional Govern-
ment to launch and to conduct the struggle that will
bring about the expulsion of the British and of her
allies from the soil of India. It will then be the task of
the Provisional Government to bring a.l>out the estab-
lishment of a permanent National Government of
Azad Hind constituted in accordance with the will of
the Indian people and enjoying their confidence.
After the British and their allies are overthrown, and
until a permanent National Government of Azad Hind
is set up in India soil, the Provisional Government will
administer the affairs of the country in trust for the-
Indian people.

The Provisional Government is entitled to and
hereby claims, the allegiance of every Indian. It.
guarntees religious liberty, as well as equal rights and
equal opportunities to all its citizens. It declares its
firm resolve to pursue the happiness and prosperity of
the whole nation and of all its parts, cherishing all the-
ehildren of the nation equally and transcending all.
the differences cunningly fostered by an alien govern-
ment in the past.

Jn'themame of God, in the name of bygone-
generatichl the Indian people into

one nation, and in the name of the dead heroes who
bi\ve bequeathed to us a tradition of heroism andself-
sibrifice, we-call u;^On the Indian people to rally round
oiir banner ,."4nd t5%tHbv r India’s freedom. We call

176 ^

upon them to launcli the final struggle against the
British and all their allies in India, and to prosecute
the struggle with valour and perseverance and with
full faith in Final Victory— until the enemy is expelled
from Indian soil, and the Indian people are once again
,a Free Nation.'

SIGNED ON BEHALF ON THE PROVISIONAL
GOVERNxMENT OF AZAD HIND

SUBHAS CHANDRA * BOSE (Head of State,
Prime Minister and Minister for War and
Foreign x4ffairs) ;

Capt. Mrs. Lakshmi (Women’s Organisation) ;

8. A. Ayer (Publicity and Propaganda);

Lt.-Col. A.C. Chatterjee (Finance) ;

Lt.-CoL Aziz Ahmed, Lt.-Col* N. S. Bhagat,
Lt.-Col. J. K. Bhonsle, Lt.-Col. Gulzara Singh,
Lt.-CoL M. Z* Kiani, Lt.-Col. A.D. Loganadan,
Lt.-Col. Ehsan Qadir, Lt.-Col. Shah Nawaz
(Representatives of the Armed Forces) ;

A. M. Sahay, Secretary (with ministerial rank) ;

Rash Behari Bose (Supreme Adviser) ;

Karim Gani, Dehnath Das, D. M. Khan, A.
Yellappa, J. Thivy, Sardar Ishar Singh
(Advisers) ;

177